The following information is a guide to the things that a judge or an arbitrator is likely to consider. This may help you decide whether to register a dispute.
There are several important legal issues that you should consider, for example:
For any dispute 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). Any compensation awarded either at arbitration or court will be based on the actual loss suffered by you because of that breach. Please bear in mind that it is rare to get a full refund.
We advise you to be realistic with your expectation and aim for a fair agreement using our ADR service More information on the ADR process can be found under ‘Resolving disputes’
When your holiday booking is accepted (usually when you receive a confirmation invoice) a contract is made between you and the tour operator – the company that provides 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 booked a flight inclusive package your ATOL Certificate gives you this information.
If you book a package holiday your tour operator is responsible for all the services – car hire, accommodation, flights, etc. – if they were part of the package the company arranged for you. If you experience a flight delay or cancellation you will need to contact the airline in the first instance.
If you have booked individual travel services such as a flight only or accommodation 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 responsible for supplying the travel services.
Before registering a dispute, you should always check that the travel company is currently an ABTA member and the confirmation documents and booking conditions to make sure that you register your dispute 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 travel company’s and on the confirmation documents that you have received.
For a dispute to be successful 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, your choice of holiday or other things beyond the tour operator’s control. 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 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 website 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 travel company 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 dispute about your holiday, and you can show that this is a result of a breach of the contract by the holiday provider, you must still take all reasonable steps to minimise the disruption to your enjoyment of the holiday. This is called ‘mitigation of loss’. Your dispute may not succeed or you may not receive compensation if you didn’t complain as soon as possible (on the spot) and give the travel company every reasonable opportunity to put things right, or if you didn’t accept any reasonable attempts by the travel company to sort out the problem at the time.
It 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.
There are three components you must consider, although your dispute 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 dispute 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 travel company has broken the contract and will also look to see if you’ve acted reasonably.
If it is found that the travel company is liable the arbitrator or judge will then consider what amount, 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 (eg an unsatisfactory room) it may be appropriate to base a claim 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 a solution in resort, you can’t usually reopen your dispute when you get home.