A Clutch of Covid Cases

25th November 2021 by Sarah Prager

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Some two years after the Covid-19 virus was first identified in Wuhan Province, and over 18 months since the first UK lockdown, the courts are starting to handle significant numbers of claims relating to the pandemic and the measures taken to contain it. Naturally practitioners in travel law are at the forefront of legal developments, and recent months have seen a number of claims relating to the operation of both the Package Travel and Linked Travel Arrangements Regulations 2018 and the Denied Boarding Regulations (Regulation (EU) No.261/2004) insofar as they concern travellers’ rights to refunds upon cancellation of holidays and flights.

Readers will recall that pursuant to Regulation 12 of the Package Travel Regulations:

 

“(7) …in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect—

 

(a)the performance of the package, or

 

(b)the carriage of passengers to the destination,

 

the traveller may terminate the package travel contract before the start of the package without paying any termination fee.

 

(8) Where the package travel contract is terminated under paragraph (7), the traveller is entitled to a full refund of any payments made for the package but is not entitled to additional compensation.”

 

In a recent decision in a small claim a court found that advice against travel emanating from the Foreign, Commonwealth & Development Office could fall within the Regulation, and thus entitle the would-be holidaymaker to a refund upon cancellation. Lewis Solomon at Loveholidays informs us of a number of other interesting cases concerning Covid-related refunds.

 

In Dennison v Loveholidays, unreported, Lincoln County Court, 15th October 2021, Her Honour Judge Fine allowed the tour operator’s appeal and dismissed the traveller’s claim for a refund, holding that the UK government’s imposition of quarantine on returning holidaymakers did not fall within the Regulation. The holiday could have gone ahead, so the Appellant argued, and the fact that the Claimant would have had to self-isolate on her return was neither here nor here so far as the Regulations were concerned. In Bowen v Loveholidays, unreported, Telford County Court, 2nd November 2021, the party of holidaymakers cancelled because they were isolating with Covid; their claim for a refund failed. And in Mitchell v Loveholidays, unreported, Portsmouth County Court, 12th November 2021, the destination hotel in Crete was closed due to Covid, but the holiday could continue with the substitution of a ‘like-for-like’ hotel, and the court held that Regulation 12 was not engaged.

 

These cases are representative of the kind of claims now being brought by disappointed holidaymakers in County Courts up and down the country. The variable results in an infinite range of factual contexts illustrate the need for some higher court guidance on Regulation 12, preferably sooner rather than later, and it is to be hoped that some of the higher value claims now being issued will provide the opportunity for more senior judges to examine and decide upon the limits of the operation of the provision.

 

Sarah Prager is a Barrister with 1 Chancery
She can be contacted at sprager@1chancerylane.com

 

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