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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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When the terms and conditions from a provider state "Booking

Resolved Question:

When the 'terms and conditions' from a provider state "Booking fees are not refundable", are extenuating circumstances ever accepted so that such fees are recoverable?

In this case, following payment of booking fees, an accident at home meant that arrangements for house sitters during a booked cruise had to be cancelled very soon after actually paying the fees. The cruise had to be cancelled too!

No reply has been received from the providers following several email requests for a refund.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Are these fees the full fees for the service or were they paid as a deposit?

Customer:

We had a cruise booked many months ago and it was necessary to arrange house sitters for the period we were to be away. This was sailiing date 7th January 2014 for seven weeks.

Late November 2013, £750.00 was paid as a booking fee for the sitters company. Their terms are that booking fees are not returned. December 3rd.
- accident at home resulting in A&E and hip surgery meaning the whole trip had to be cancelled. - and the sitters' booking.

My request for a refund, which I consider is morally correct - whatever their terms and conditions - has been ignored. Three or four emails from me and NO response. Even a 'phone call was met with "It's a bad line, can't hear you"

I have suggested that an administration fee be retained and the rest of our money should be returned under these rare and unfortunate circumstances. I would do it if the situation was the other way round!

Customer:

The £750.00 was the booking/deposit fee. The rest (well over £1,000.00 ) was to be paid to the sitters upon our return from the cruise. ......We didn't go, of course.

Ben Jones :

Hi, sorry I was offline by the time you had replied earlier. Do you know if they managed to find a replacement client for this period?

Customer:

The service is offered in the local "rag", i.e., The Wealden Advertiser. As I see it, if they get a client, they will supply a sitter, or sitters, for that particular client. There will be a list of sitters that they can select as and when demand is placed.

Customer:

My point is, the Company and the sitters were not inconvenienced because our notification of cancellation was given as soon as we knew the cruise could not go ahead for us.

Customer:

This was 5th or 6th December (accident on 3rd December) and the cruise was not beginning until 7th January,2014.

Ben Jones :

ok let me get my response ready please

Customer:

Sorry there was a gap in our discussion. I had to shop while the patient remains at home in a wheelchair!

Ben Jones :

No problem, I was away as well, I will respond on here shortly

Ben Jones :

Even though the terms stated that there was no refund on any booking fees made, it may still be possible to challenge this. However, what you believe is morally correct does not mean it is also legally correct and often the law does not take into account what one believe may be morally right as that is distinct from the legal side and it is the latter that matters.


 


Generally, when a person agrees either to buy something or use a service, paying a deposit (you can count the booking fee as a deposit here) they enter into a legally enforceable contract with the other party. It is implied that they have accepted the deposit as security and as proof that you want to proceed with the contract.


 


Unless the other party subsequently commits a serious breach of contract, or there was a cancellation clause, you would have no legal right to cancel the agreement and if you do so they will be acting in breach of contract and risk losing your deposit. This is especially true if the deposit was described as non-refundable.


 


However, the other party will be subject to certain consumer rules and regulations. For example, you will have some protection under Schedule 2, Regulation 1(d) of the Unfair Terms in Consumer Contracts Regulations 1999. It states that if the contract has been cancelled after a deposit has been placed you are entitled to have the deposit returned in full, unless the other side has spent time, effort and money, in which case they can deduct reasonable expenses. Even if some expenses have been incurred, if these are subsequently recovered, for example by replacing you with someone else and suffering no losses, the deposit should still be returned in full. It follows that a blanket non-refundable clause that entitles the other side to keep the deposit in all circumstances is most likely going to be unfair and unlawful as it could be seen as a penalty clause.


 


If you are having difficulties in recovering the deposit when you believe you are entitled to have it returned, advise them that you will not hesitate reporting them to the Office of Fair Trading and, if necessary, pursue the matter further through the county court. Exerting such pressure could often work in changing the seller's position in this matter. If they still refuse though, your only option is to go through the small claims court.

Ben Jones :

Hi, can you please respond on here - the other thread is a duplicate which I will close, thanks

Ben Jones :

Hi, did you get my response above?

Customer:

Ben,

Customer:

What an excellent response from you. I had overlooked the possibility of using the Office of Fair Trading as a tool. As you say, it might just change their attitude if they think some bad publity may follow them.

Customer:

I would not go as far as the Small claims Court - we don't want to 'advertise' either, but maybe it won't need that kind of action.

Customer:

However, they've shown their true colours and no recommendation will ever come from us in the future.

Customer:

Thank you again.

Ben Jones :

You are most welcome, all the best

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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