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Holidays from Hell

When you book a package holiday, you are entering into a contract with the tour operator (not the travel agent). If things go wrong due to the fault of the tour operator, it is in breach of the contract and you may be entitled to compensation.

The contract

The contract is based on the tour operator's brochure — both the "booking conditions" (generally in small print) and descriptions of the specific holiday (hotel, resort and facilities) are part of the contract. You are entitled to receive what the brochure promises and its descriptions must not be inaccurate or misleading — but don't expect all the drawbacks to be pointed out.

Read the brochure carefully

Both the small print and the description pages:

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Don't be fooled by lyrical descriptions:
"The hotel is set in the countryside immediately across the road from the beautiful beach." Sounds tranquil? But what about that road — is it a country lane or a six-lane highway? Countryside doesn't always mean quiet — dogs barking, donkeys braying — nor pleasantly smelling. And a "beautiful" beach — it doesn't say it's safe for swimming, nor even accessible.

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Don't make assumptions:
If the brochure doesn't actually say the hotel has air-conditioning (or a pool, or bar or whatever else is important to you) then it probably doesn't have it — even if every other hotel on the page (or indeed whole brochure) does have it. If in doubt, ask the tour operator. If you get no satisfactory answer and the point is important to you, don't book.

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Take the relevant pages of the brochure on holiday with you:
There's no way you'll remember all that small print.

Insurance

Travel insurance is important. Most tour operators will not accept your booking without insurance. Many tour operators want you to take their insurance. You do not have to do this — you can arrange your own insurance. (But the tour operator does not have to accept your booking.)

Cancellation

The contract comes into being when the booking is confirmed. Like any other contract, you do not have a right to cancel it just because you have changed your mind — even for good reason, like illness or redundancy.

If you do need to cancel the holiday, speak to the tour operator and explain the circumstances — but you will almost certainly lose some money. (Investigate your insurance to see whether this can be claimed back.)

Can the tour operator cancel the holiday?

The contract is as binding on the tour operator as on you and generally it cannot cancel without giving you compensation, although this does depend on what the booking conditions say.

Can the tour operator make changes?

The tour operator may be able to make small changes to your holiday. What kind of changes it can make will be in that "small print". However, if a major change is proposed:

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you may be entitled to reject the holiday and require the return of any money you have paid (and you may be entitled to compensation if you have to spend more to buy a similar holiday), or

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you can accept the change and go on the (different) holiday, sometimes coupled with compensation as per the booking conditions.

Sometimes the change will be made very close to the start of the holiday, and you may feel that if you reject it you might not be able to book a similar holiday elsewhere. In that case there is a third option: you could accept the change under protest (in writing), reserving your right to claim compensation for the breach of contract at a later date.

Complaining

If you arrive at your destination and the holiday is not as you expected you must make a complaint to the tour operator's representative — don't leave it until you return home or you may be deemed to have accepted it.

Golden rules for complaining

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Do so as soon as you become aware of a problem.

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Complain politely but firmly.

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Put your complaint in writing — to the rep and to the tour operator, using its complaints form or procedure if there is one — and keep a copy.

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Keep a record of your complaints and any suggestions made by the rep.

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Don't reject a solution by the rep if it is the best they can do, even if it is not entirely satisfactory. However, if you accept a partial solution to the problem, make it clear that you are still not entirely happy.

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Keep receipts for all extra expenses incurred because of the problem.

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Gather evidence — photographs, movies.

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Enlist witnesses and get their phone numbers and/or addresses in the UK.

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If a problem affects other holidaymakers as well, combine resources for a joint complaint (both at the resort and on return to the UK).

Kinds of complaints

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Flight delays:
You may receive surprisingly little compensation for these. New statutory regulations do affect your right to compensation for delays. For long delays you may be able to claim on your insurance.

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Lost luggage:
The tour operator will usually not take responsibility. This leaves a claim on either the airline or your insurance (but not both).

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The accommodation is not as described in the brochure:
Then it's breach of contract and you can claim compensation. But make sure you complain to the rep and try to get the problem rectified.

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The accommodation you booked is not available:
Although your contract may specify particular accommodation, the booking conditions may allow the tour operator to substitute accommodation in the event of overbooking. However, the alternative accommodation must be of the same or higher quality or the contract will have been breached.

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Standard of accommodation:
Even if not specifically mentioned in the brochure, you are entitled to accommodation of a reasonable standard of cleanliness and quality in keeping with the cost and type of holiday. This is a rather loose concept, but if you are not happy you should complain to the rep.

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Safety:
The tour operator is responsible for the safety of the accommodation.

What the tour operator is not liable for

Obviously you cannot expect the tour operator to compensate you for things beyond its control — such as the weather, or local holidays or strikes making facilities unavailable.

After the holiday

When you return home, before you can take any other action, you must put your complaint in writing to the tour operator. You must do this within 28 days of returning (but check that the booking conditions do not alter this period) — although it may be rather longer than that before the tour operator responds. Make the seriousness of your complaint clear in your letter and enclose copies of any supporting evidence.

If you receive no satisfactory offer of compensation from the tour operator you will have to take the matter further, either with a small claims action or through arbitration. (Generally, arbitration is the usual route via ABTA.)

How much compensation?

How much you receive will depend on many circumstances. However, to simplify matters, you may be able to claim on a number of grounds:

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Expenses:
You can claim your out-of-pocket expenses for everything you had to pay that you would not have done if you had received the holiday you booked.

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Loss of enjoyment:
In most suits for breach of contract you can only claim for material loss, and cannot get damages for any distress or disappointment caused by the other party not fulfilling its obligations. However, with a holiday the whole point of the contract was to provide pleasure. When things go seriously wrong with holidays you can make a claim for damages that takes account of the disappointment, and even inconvenience, you suffer as a result — although of course loss of enjoyment is a very subjective matter and open to interpretation.

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Pain and suffering:
If you suffered serious illness or injury due negligence on the part of the tour operator or hotel this is an entirely different matter and you really do need to consult a solicitor. Mark Goldstein will be happy to advise.

Trading standards

If your holiday was misrepresented in the brochure you can make a complaint to your local Trading Standards Officer who may prosecute the tour operator under the Trade Descriptions Act 1968. However, this will be a criminal prosecution and will not offer you any compensation — so you will still need to pursue a civil action.



Article first published June 2003
Revised May 2005

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