The following information is a guide to the things that a judge or an arbitrator is likely to take into account when dealing with a claim for compensation. This is intended to assist you in deciding whether to make a claim or how much compensation to claim if you have not enjoyed your holiday.
This guide highlights several important legal issues that will affect any claim you might have. For example:
For any claim to be successful, you’ll need to show that your holiday contract has been breached (this means that the holiday wasn’t provided as promised),
If your claim is successful, any compensation awarded will be based on the actual loss suffered by you as a result of that breach. Please bear in mind that it is rare to get a full refund at arbitration or court. It’s far better that you make a considered claim, which is realistic and fair.
When your holiday booking is accepted (usually when you get a confirmation invoice) a contract is made between you and the tour operator – the company that organises your holiday. You should check your confirmation documents carefully as these will tell you who the tour operator is and who is responsible for the holiday services that you have booked.
If you book a package holiday your tour operator is responsible for all the services – car hire, accommodation, flights, etc. – as long as they were part of the package the company arranged for you. (Note, however, that airlines also have obligations to you, so for example if you are claiming compensation for flight delay or cancellation, you’ll be asked to approach the airline in the first instance).
If you have booked individual travel services rather than a package holiday, the individual suppliers will be responsible for the services that they are providing.
If you have booked through a travel agent, the confirmation documents should make it clear which company is actually responsible for the travel services.
Before making any claim, you should always check the confirmation documents and booking conditions to make sure that you make the claim against the right company.
You have the right to expect the holiday that you booked and paid for, so look carefully at how the holiday is described in the brochure or on the tour operator’s website and on the confirmation documents that you have received. If the holiday doesn’t match the description, you may have a claim against the tour operator for compensation.
For a claim to succeed it’s not enough that you didn’t enjoy your holiday. Your enjoyment will be affected by any number of things, such as the weather or your choice of holiday or other things beyond the tour operator’s control, which are not the responsibility of the tour operator. For a claim to be successful, rather than simply showing that you didn’t enjoy your holiday, you’ll need to prove that the tour operator has actually broken the terms of the holiday contract.
There are two types of contract terms – express terms and implied terms. Examples of express terms are where the brochure makes specific promises such as full board accommodation or the availability of water-skiing. Implied terms are those which aren’t specifically spelled out in the contract but which are included through law. For example, it will be an implied term that your holiday should be of a reasonable standard, bearing in mind the price you paid.
If you can show that the tour operator has breached an express or an implied term of the contract, to qualify for compensation you must then prove that you’ve suffered a loss as a direct result of that breach of the holiday contract. This isn’t always a straightforward process.
If you do have a complaint about the holiday, and you can show that this is a result of a breach of the contract by the tour operator, you must still take all reasonable steps to minimise the disruption to your enjoyment of the holiday. This is called ‘mitigation of loss’. Your claim may not succeed or you may not receive compensation if you didn’t complain as soon as possible (on the spot) and give the tour operator every reasonable opportunity to put things right, or if you didn’t accept any reasonable attempts by the tour operator to sort out the problem at the time.
How much compensation you can reasonably expect (if any), depends on the extent to which you were prevented from enjoying the holiday. It’s not an exact science. The law expects you to act reasonably when faced with a problem and when considering possible solutions.
Compensation claims can have three components, although your complaint may not fall into every category:
These categories are an important guide to what you might be entitled to, but they should be considered together when working out how much your claim might be worth. The overall figure, when they’re combined must be reasonable.
Arbitrators and judges will weigh up all the evidence to see if the tour operator has broken the contract and will also look to see if you’ve acted reasonably.
If it is found that the tour operator is liable the arbitrator or judge will then consider what compensation, if any, to award based on your evidence under the three components shown above. You must work out the amount that represents the proportion of the holiday that was not provided, as promised. If, for example, you spent two days sorting out a problem (e.g. an unsatisfactory room) it may be appropriate to base a claim for compensation on the two days’ worth of the accommodation part of the holiday which was lost.
If the holiday was a package holiday, the accommodation part of the holiday won’t be the full amount that you paid for the holiday, as part of the overall cost may include the cost of flights, inclusive excursions, transport, meals or other services which may be a significant proportion of the overall holiday price.
Remember that it’s unusual to get the whole holiday cost back. Only if the holiday was a total disaster from start to finish or if your disappointment and expenses were very substantial can you expect a full refund. Also remember, if you’ve already accepted compensation in resort, you can’t usually reopen your complaint when you get home.
As previously advised this is not an exact science and as a trade association we cannot advise on the amount you should claim. However, it is highly unlikely you will receive a full refund of your holiday. Claims under the Scheme cannot be made for more than a total of £25,000, limited to £5,000 per person. Where a claim for personal injury/illness is included, the limit on this element of the complaint is limited to £1,500 per person.