UK: Increased Protection For Package Holiday Bookings – Reform Is On Its Way

Last Updated: 7 February 2018
Article by Christopher Deacon

By the summer 2018 the EU Package Travel Directive will become part of UK law, offering increased protection for consumer holiday bookings and closing a gap in consumer protection for holidays booked online.

The relevant provisions come fully into force by 1 July 2018, just in time for the peak summer holiday season, and at a time when online holiday bookings are at an all-time high. Eighty-three percent of holidays booked in the last 12 months were booked online according to the ABTA Holiday Habits report 2017. Last year also saw yet more high profile holiday companies collapse, notably Monarch.

As well as ensuring holidaymakers are fully protected financially, the reforms will enhance consumer protection when things go wrong by extending the definition of a "package holiday" to the wide range of holidays booked online and on a tailor-made basis. Consumers must be told who the organiser of the package is. It is the organiser who is ultimately responsible for the services provided as part of the holiday booking.

Definition of a "package holiday"

Holidaymakers have been turning to the internet to research and book their travels for the best part of two decades, with travel companies responding by offering various tailor-made options and so-called 'dynamic packages'. These dynamic packages fall outside the traditional definition of a package holiday and, with the law slow to catch-up, travellers have been left without important protections when things go wrong overseas.

The definition of a "package holiday" is now widened to include not only traditional package holiday bookings (where different travel services are sold under one single contract – typically flights, accommodation and transfers) but also dynamic packages, which will include:

  • Holidays purchased from a single point of sale (eg a website or high street travel agent) where you select two or more independent travel services from a range of products relating to a single trip and then pay for them.
  • Holidays where, although there may be different quotes and individual contracts for each service, the services are put together or selected and then sold for an inclusive or total price. The distinction with this type of package is that there may be two or more separate contracts but the organiser sells the holiday to the traveller for a total price.
  • Any holiday which is advertised as a package will be caught by the new law.
  • Where you are sold a product that allows you to select different services once the contract is concluded, this will be deemed a package holiday. For example, a "gift box sale" where you purchase the gift box product and then afterwards select your choice of accommodation or restaurant.
  • Linked online bookings, or "click-through" sales, will give rise to a package holiday contract if you go on to purchase further services by clicking through on a link sent to you within 24 hours of purchasing the first travel service. This typically occurs with an online flight booking where the airline or booking agent sends you a link to an accommodation or car hire website. If you book that accommodation or car hire within 24 hours, and if the first travel service provider passed on your name, address and payment details to the second, then all of those services will be treated as a package.

The wider definition of a package holiday illustrates how many more travel arrangements will be caught by the new Directive. The organiser of a package falling within one of the above definitions has overall responsibility for the holiday, which includes ensuring the different travel services are provided with reasonable care and skill and compensating customers in certain circumstances if things go wrong, notably for personal injury.

Linked travel arrangements

Crucially, linked online bookings should not be confused with "linked travel arrangements." These are separately defined in the Directive as:

  1. Holidays where you select and pay for the services separately, albeit from a single point of sale – such as the same website or travel agent; or
  2. Bookings made within 24 hours of each other as a result of a targeted linked booking process. This usually occurs when you book one travel service, receive an email with a link to another then book and pay for that service within 24 hours. For this type of booking to be a linked travel arrangement, rather than a linked online booking, the travel service provider must not have passed on the traveller's payment details – if payment details are shared then the booking will be considered a linked online booking.

Consumers need to be cautious when booking a linked travel arrangement, which will provide insolvency protection if a travel company goes bust but does not provide the same level of protection as a package holiday if there is a problem with how the travel services are provided, including any claim for personal injury.

Provision of information to consumers

One of the most important features of the new Directive is the requirement that, before the booking is concluded (ie a legal contract entered into), consumers are clearly told the identity of the organiser of the package and provided with their contact details. Knowing the identity of the organiser is important because if you suffer an injury on holiday and you need to bring a claim on your return home it is the organiser who is ultimately responsible.

This gives rise to a potential problem with bookings that involve multiple contracts and also linked online bookings where a contract, (say for flights), is concluded before the second contract, (say for car hire or accommodation), is entered into. It is the second contract that triggers the creation of a package.

The annex to the Directive sets out standard wording for informing consumers when they have booked a package through a linked online booking. The standard wording envisages that the provider of the first travel service will be the "organiser" of the package. It follows that you should be given standard wording by the first travel service provider at the same time as being sent the online link so that there is no doubt a package will be created if you then enter into a contract with the second travel service provider within 24 hours of being sent the online booking link.

The provision of information requirement is intended to give you a genuine choice on whether to proceed with the booking and to leave no doubt as to who the organiser is so that you know exactly who to pursue should any of the arrangements forming part of the package go wrong.

Liability when things go wrong

Following an injury on a package holiday, currently the holidaymaker is required to show the package organiser was at fault (usually with reference to the standards, regulations, customs or practice in the country where the holiday took place).

When the UK government consulted on how it should implement the Package Travel Directive into UK law during the summer 2017, both Stewarts and APIL made a compelling argument for shifting to the package organiser the burden of showing they are not at fault. The reasoning behind this proposal is that the organiser is far more likely than the holidaymaker to know what the local standards are and they will also have ready access to the evidence about how the accident happened. As the UK government has indicated it plans to simply "copy and paste" the Directive into UK law, more far-reaching reform reversing the burden of proof in package holiday cases is unlikely to be achieved this time around.

Financial protection

It is worth mentioning that the ATOL scheme, which protects consumers in the event the travel company or airline they have booked with goes bust before they travel or while they are away, will be extended to cover all holidays now falling within the new definition of a package. This is unlikely to significantly change the current position in the UK because since 2012 many of the holidays now falling within the new definition of a package have had ATOL protection under the Flight-Plus bookings scheme. A Flight-Plus booking is created when you request to book a flight with accommodation and/or car hire on the same day or a day either side of the flight booking.

Concluding thoughts

Publication of the UK's package travel regulations was expected in early January 2018 but is still awaited, meaning travel companies will have limited time to prepare for the changes ahead of July 2018. Although with the UK government's "copy and paste" approach to implementing the Directive, there should be few surprises to the travel industry.

When the reforms come fully into force we can expect travel companies to innovate in an attempt to find ways around the regulations and that will inevitably mean aggrieved or seriously injured travellers having to take their cases through the courts to establish where liability for the proper performance of the package holiday contract lies.

For anyone thinking Brexit might rob them of this additional protection, the answer is no. The Directive must become part of UK law before we leave the EU in 2019, but that would not stop the government from legislating after Brexit to change the level of protection for holiday bookings. Any such move would be a regrettable step backwards at a time when the law in this area is only just falling into line with how most of us now book our holidays.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions