Package Travel Regulations 2018 – another day in the sun for travel claims?

Date published

10/16/2018

Services

Sectors

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The Package Travel and Linked Travel Arrangement Regulations (Regulations) came into force on 1 July 2018, and apply to any holiday booked after that date. They broaden the scope of holidays to include linked travel arrangements as well as packages.

The Regulations set out tour operators’ duties, including restrictions on changing terms, providing securities in case of insolvency, and duties in the event of an unavoidable or extraordinary circumstance.

The implications seem in stark contrast to those recently introduced by the Pre-Action Protocol for the Resolution of Package Travel Claims in May 2018, which sought to reduce the number and cost of holiday sickness claims. The Regulations, which are intended to implement the Package Travel Directive, increase protection for consumers, but have they gone too far?

The Regulations

The Regulations include a much broader definition of what constitutes a ‘package’ and who comprises an ‘operator’. As a result, tour operators will be liable for more parts of the holiday. In addition, the definition of what comprises a ‘travel service’, which tour operators would be responsible for, has widened.

As well as including the carriage of passengers, accommodation and car rental, there is an added ‘any other tourist service’ addition. Selling more than one of these ‘travel services’ would likely mean you are selling a package.

The catch-all reference to ‘any other tourist service’ will bring into the package items previously not included, such as theme park tickets, ski packs and spa treatments. Now, if a tourist service is sold and it either is an essential feature of a trip, or comprises 25% or more of the total cost of the holiday, it may comprise a package if, in addition, at least one of the following applies:

  • The services are sold for the same trip and combined by a trader before a single contract is concluded.
  • When two travel services are purchased in a single booking process, even if they are sold as separately priced items.
  • A ‘gift box basis’ - whereby a fixed price is paid, but the travellers can choose from a variety of services after the contract has been concluded.
  • When the travel arrangements are booked through online linked travel transactions and there is a click-through purchase made within 24 hours.

It is worth noting that even if the component parts of the package are specified at the request of the traveller, the holiday will still be deemed a package.

Outside the scope of the Regulations

Business travel when arranged as part of a contract with a company and for less than 24 hours with no overnight accommodation is outside of the Regulations. So is ‘not for profit’ travel if it is provided to a limited number of travellers and for only a few trips a year. Train journeys or journeys where overnight accommodation is secondary to the purpose of the trip is also excluded from the new regulations.

Comment

It is essential for all operators to review the way they sell holidays and consider if they are now caught within the wider reaches of the new Package Travel Directive. The obligations they place on operators need to be considered across the business as they affect the way holidays are sold, what information must be provided before a sale is achieved and the health and safety obligations regarding services provided by an operators suppliers to the customer.

Clearly the Regulations follows the trend for consumer protection with increased demands upon operators. This is in contrast to the new pre-action protocol for holiday sickens claims. The new rules regarding pre-action evidence exchange and the limited cost benefits for claimants were in response to the sickness claims epidemic. These new Regulations could undo the work to reduce spurious sickness claims and we expect to see more instances and disputes requiring compensation on the part of operators as a result.

Read other items in Personal Injury Brief - November 2018

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