| SPOTLIGHT |
Sarah Prager KC analyses the latest instalment in the great Covid refund saga.
Claims arising out of the mass cancellation of holidays due to the Covid-19 pandemic and the measures taken to contain it have started to come through the courts, first as a trickle, but latterly in greater volume. One particularly contentious class of claim involves cancelled school trips, in which the claims are generally made by the school itself against the tour operator with whom the trip was booked.
One such case – Cledford Primary School v Travel Class Limited (Chester County Court, DDJ Stringer) – was recently decided in favour of the claimant school. The claim illustrates two of the most hotly contested issues in these cases, and as such may be considered to be an interesting case study perhaps indicating the approach of the judiciary in the County Courts to claims of this nature.
Cledford Primary School is located in Middlewich, in Cheshire, a town previously best known for the multiplicity of its rivers and canals; if, as the author’s father always used to say, Chelmsford is ‘the Venice of East Anglia’, Middlewich is surely the Venice of the North West. On 6th March 2020 the school contracted with the Defendant for a 42 pupil activity holiday in Shrewsbury, birthplace of Charles Darwin and (as readers are no doubt already aware) of John Weaver, inventor of the pantomime (oh no he wasn’t – Ed.). The trip was scheduled to take place between 7th and 10th October 2020, but by July 2020 it had become clear that the pandemic would prohibit it from going ahead as planned, and the school and Defendant agreed that it should be postponed to March 2021. On 29th September 2020 the school decided that the trip was unlikely to go ahead, cancelled it, and sought a refund in the sum of £3,230, representing the total cost of the holiday. The Defendant refused to provide any refund, on the basis that the trip did not fall within the regulatory framework contained in the Package Travel and Linked Travel Arrangements Regulations 2018, and that the school had cancelled pre-emptively months before the holiday.
At paragraph 4 of the judgment practitioners will find a handy guide to the evolution of travel advice in this context in 2020 and 2021; suffice to say that the government, both in the form of the Department for Education and through the utterances of Boris Johnson, continued to advise against travel throughout, and the school relied on this advice.
Did the Regulations apply at all?
The Defendant submitted that the Regulations did not apply because the trip did not qualify as a ‘package’ within the meaning of Regulation 2(5). It will be recalled that the relevant provisions state:
“2(5) In these Regulations, subject to paragraph (6), a “package” means a combination of at least two different types of travel services for the purpose of the same trip or holiday, if—
(a) those services are combined by one trader, including at the request of, or in accordance with, the selection of the traveller, before a single contract on all services is concluded…
(6) A combination of travel services where not more than one type of travel service of the kind listed in paragraph (a), (b) or (c) of the definition of “travel service” is combined with one or more tourist services of the kind listed in paragraph (d) of that definition is not a package if the latter services—
(a) do not account for a significant proportion of the value of the combination and are not advertised as, and do not otherwise represent, an essential feature of the combination; or
(b) are selected and purchased after the performance of a travel service of the kind listed in paragraph (a), (b) or (c) of the definition of “travel service” has started.”
2(1)
““travel service” means—
(a) the carriage of passengers;
(b) the provision of accommodation which is not intrinsically part of the carriage of passengers and is not for residential purposes…
(d) any other tourist service not intrinsically part of a travel service within the meaning of paragraph (a), (b) or (c).”
The Defendant’s argument was that the trip did not constitute a package because the accommodation provided was for residential purposes. It derived some support for its position from Recital 17 to the underpinning Directive, Directive (EU) 2015/2302, which states:
“…Accommodation for residential purposes, including for long-term language courses, should not be considered as accommodation within the meaning of this Directive…”
The Defendant contended that the accommodation component of the trip was arranged for residential purposes and that the example given in the Recital of language courses indicated that educational sojourns were not intended to come within the Regulations.
The difficulty for the Defendant – and it may be thought that it was always likely to be an insuperable one – was that its own terms and conditions stated that its trips were subject to the Regulations. Furthermore, it is difficult to see why accommodation provided to schoolchildren for a period of some three nights should be any different, qualitatively, to any other weekend trip.
The judge did not accept the former point, although he does not appear to have turned his mind to it in the context of a consumer contract or the potential unfairness inherent in the misdescription of the services offered; but he did accept the latter:
“…I am satisfied that in order for accommodation to be “residential” within the meaning of the Regulations it must, on the basis of the ordinary definition of the word, and by reference to the use of the word in the Directive, have some long term and/or permanent quality, and not be simply accommodation of the nature offered in this booking, that is a standard multinight holiday booking; I therefore find that the accommodation provided by the Defendant pursuant to this booking was not “residential” and was therefore capable of being a “travel service” within the meaning of the definition at Regulation 2(1)…”
So much for the defence that the Regulations didn’t apply.
Had the school cancelled prematurely?
Pursuant to Regulation 12(7):
“…in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect—
(a) the performance of the package, or
(b) the carriage of passengers to the destination,
the traveller may terminate the package travel contract before the start of the package without paying any termination fee.”
It will be recalled that the school cancelled the trip some six months prior to the departure date. The Defendant therefore submitted that the cancellation was premature and that at the time of cancellation it was perfectly possible that the restrictions would have eased and that it could go ahead after all. The Claimant relied on the reasoning to be found in the judgment in Brynmawr Foundation School v Holiday World International Limited, Cardiff County Court, 2nd February 2022 as to the scope of the right to cancel. In fact as it turned out the trip could not have gone ahead in March 2021 because the activity centre did not reopen until May 2021.
The judge relied on the following factors in finding that the requirements of Regulation 12(7) were met on the day of cancellation, 29th September 2020:
He concluded:
“…in my judgment an assessment of the relevant “circumstances” must be as at September 2020, having regard to likely events, in the light of the information available at the point of cancellation, and at that point, in my judgment, on the basis of the facts and circumstances of this case, performance of the contract was significantly affected by reason of the extraordinary circumstances of the pandemic and the consequential restrictions. I do not accept, again having regard to the facts and circumstances known at the time of the cancellation (but also, incidentally, with the benefit of hindsight), that the interval of time between the cancellation and the booking makes any material difference to my conclusion…”
The claim therefore succeeded and the school got its refund.
Comment
The author respectfully concurs with the judge’s conclusion as regards whether the Regulations applied at all, albeit it may be thought surprising that, as he found, a tour operator which holds itself out as selling compliant trips might nevertheless not be bound by the Regulations. It would seem that the judiciary is generally prepared to find that school trips are covered by the Regulations, and this, it is suggested, is clearly right.
The findings as to the applicability of Regulation 12(7) are perhaps more debatable. The cancellation was made some six months prior to departure, albeit at a time when restrictions were tightening; but the situation was a fluid one throughout the pandemic. The reliance on the fact that there was no reason to believe that the restrictions would be lifted prior to departure is interesting. It suggests that the starting point for consideration of cancellation rights is the status quo as at the time of cancellation, rather than (as previously understood by most practitioners) an attempt to judge the reasonableness of any (flicker of) hope that matters might resolve prior to departure. If the former approach is correct, there is no reason to believe that cancellation a year in advance, or more, might not fall within the scope of Regulation 12(7); it would be for the Defendant organiser to show that there were reasonable grounds to believe that the position would change in the interim. This may be an important shift in the interpretation of Regulation 12(7) to a far more consumer-focussed approach than the ‘flicker of hope’ Lambert test of old, or even the more recent ‘reasonable grounds’ Sherman test – it will be interesting to see whether it is adopted by the judiciary more widely in the claims still to be decided.
Sarah Prager KC is a barrister at Deka Chambers.
Kate Legh, instructed by Kamran Khan of DAC Beachcroft, represented the claimant in this case.
