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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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Hi I hope you can shed some light on an issue that we are

Resolved Question:

Hi

I hope you can shed some light on an issue that we are experiencing with a deposit that was paid £750 for the hire of a wedding suite on Sat Aug 2nd 2014 at a hotel in Lancashire on the 12th January 2014, after having been prompted by email to pay the deposit by the 14th January 2014. Having done that, we discovered 2 days later that the hotel was running a sales promotion in connection with a major event in the town during the same weekend that our wedding was booked in for, the upshot being that for that weekend only, the hotel has inflated its rack rents for rooms by around 10-20%. We then checked their website and we realised that they had been aware of the dates of this event prior to them asking for our deposit, but had not communicated their intentions to us. At the point of initial discussions with the Hotel's representative in November, we asked 2 things:

We would like to block book and pay deposits upon around 25 rooms based on the tarrif that was in place at the time to avoid any increased room costs to our guests.
As 95% of the wedding party was from outside the area, we stressed several times that it would be helpful to us to do this, sensing that the representative's response seemed a little evasive when she responded 'well you should ensure that your guests book rooms a soon as possible as we may be changing our rack rates in January 2014.

2) I specifically asked whether there were any major events planned for that weekend that might clash or cause issues for our guests in booking rooms in their hotel, I specifically made reference to photo opportunities on Lytham Green and Windmill as was assured that there wasn't a problem on that date. When we received a generic marketing email dated 15/01/2014 from the hotel stating that the 'Lytham Proms' has XXXXX XXXXX headlining to 10,000 guests on Lytham Green on 2nd August 2014 and that the cost and terms of booking their rooms had immediately gone up for that weekend.

We felt that the hotel hadn't been clear and transparent in communicating this to us and had we known, we would have considered the premise before paying our deposit. However, we urged our guests to book rooms as soon as possible and continued to organise our wedding. Since then we have had a 'sales oriented' email on 24/01/2013 informing us of the Proms and the Hotel's promotion (first mention from them) about getting our guests to book as rooms are in high demand (despite having learnt yesterday that they still have some 29 rooms available (approx 50% of their overall capacity). Since then 2 of our guests have had serious issues booking rooms with the hotel, due to incompetent staff and obviously poor systems management within the hotel, this coupled with feeling that the lack of transparency of their intentions in their email asking for us to pay our deposit has now left feeling that we do not have the level of confidence in them as an organisation and that they have broken down the trust relationship. We have stated these facts in an email sent on Sunday 9 February and were then told that the Hotel will not refund our deposit.

We have electronic threads of all communications and proof that the Hotel was aware of their promotion, prior to their email of 11th Jan 2014, asking us to pay the deposit by the 14th January 2014. However at a high level, I am interested to know where we might stand on grounds of 'conscionability'? and look forward to any response from yourselves.

Kind Regards

Toby
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Let me go through your query in a bit more detail and I will respond shortly

Customer:

Hi Ben4

Customer:

Hi Ben

Customer:

Please see response email from Hotel: Dear Toby and Shelagh


I’m sorry to read your email highlighting your intentions to cancel your wedding reception.

I can re-assure you your event will be looked after to our full ability, there is no reason that the Lytham Proms weekend will have any impact on our service standards as is doesn’t detract from our staffing levels in anyway.

I can also clarify that we did send a receipt of the deposit of £750 by email on the 13th January.

Regarding your booking form, as mentioned you have not yet sent this form so how could we confirm receipt of it, If it worries you I can certainly confirm we have your wedding date secured.

You first enquired by email on the night of 5th of November to which Caroline responded the next morning with the relevant information, costs, available dates etc.

A provisional reservation was made on the 17th November in person with Caroline after you had stayed the weekend at the hotel, you then confirmed your wedding date, again with Caroline the following weekend.

Since this we have allowed you more than the agreed 14 days to pay your deposit to secure the room, the deposit of £750 was then paid on the 13th January after Caroline prompted you by email that we have been holding the date in the diary, the booking form was attached to this email.

Please be aware during this extended time of provisionally reserving the room we have been unable to offer the facility for other enquiries.

I know that I had a positive conversation with you by telephone last year, and as well as emails Caroline has also communicated any questions or requirements with you by telephone.

Regarding your room allocations.

As per an email from myself dated the 26th November I can confirm we have held both your bedrooms on the Friday night before your wedding day and your room on the Saturday and Sunday night.

You also have another 6 rooms that you pre booked in November, confirmed by email on the 26th November, we did agree to hold these rooms for you without deposit until the1st march this year, all these rooms can be cancelled without penalty if you wish to do so.

If there was a cancellation of any other rooms that have been booked for this weekend that are on a pre-payment rate they would unfortunately be non-refundable.

Yes the weekend you have booked is a busy weekend, however all weekends during the summer period on the Fylde Coast tend to be, from Blackpool to Lytham there are many festivals, concerts and exhibitions going on that attract a high level of business to the area.

However we still do have 27 bedrooms available for both nights if necessary, 16 in Grand twentytwo and 13 in the main building.

If you would like me to block book these room for you I will be able to do this, however we will require a prepayment/ deposit to secure these rooms.

I’m aware block booking is something that we previously discouraged, as explained to you last year it is far easier for all guests to book their requirements directly online allowing then match the appropriate room to their budget, it also eases the financial and administrative burden from yourselves in booking and managing these room for other guests.

I do apologise that Mrs McCulloch’s email was not responded to, I fully understand why this has raised concern’s.

I was on holiday during this period but the office was correctly staffed in my absence, I will be making enquiries as to why it wasn’t replied to and will apologise personally to Mrs McCulloch in due course.

We are confident that you will have a delightful day here at The Grand, we are passionate about our business and will ensure everything runs smoothly.

However should you wish to cancel your booking we will be unable to refund the deposit paid as requested.

Please let me know your intentions and I will make ensure we proceed in the appropriate manner.

Yours sincerely

Derrick Holland

General Manager
Customer:

Absolutely, take as long as you need. Thanks Toby

Ben Jones :

So do you wish to cancel the whole booking?

Customer:

I noted that the hotel had not communicated to us the 'non-receipt' of our booking form, as it goes, It is a complete co-incidence that we only noted that the transmission was jammed in the outbox of the Outlook email client, as I have since used my IPad for email. This is not our issue anyway, just indicative of their questionable communications. We also have checked 3 times and have no record of having received the receipt from Mr Holland on 13th January 2014 - although again that is immaterial to our issue of non-disclosure of their alternative marketing intentions during the weekend of our wedding. we accept that they are entitled to do it, but should have told us when asking us to pay the deposit - that is my prime issue. We realise that 'Non-refundable' rooms booked by our guests is possibly a separate issue - It may be worth noting that we are prepared to make reparation for at least 6 pre-booked flights from Dublin to Blackpool for our guests and haven't even made reference to that in any of our communications to the hotel. There are some other (£500 or so) potential losses from ancillary costs that we have paid out, that we currently don't expect the Hotel to pay. We felt that our offer was fair, mitigated and equitable, considering these extra losses that we would suffer, on the basis that we are not happy for the wedding to go ahead with the Grand Hotel . We informed our group on Sunday and prevented a further 10 or so rooms being booked at that point and expected some 10 more rooms would still be needed, over and above that number.

Customer:

Full email we sent, just seen that it was truncated by the Text box size-


Dear XXXXXine and Derrick,


After careful consideration, we feel that we need to write to you. Having gone through our records today, it has come to light that whilst our deposit of £750 for the Lytham St Annes Suite for 2nd August 2014 was successfully transferred to The Grand Hotel on 13th January 2014, 3 days prior to the deadline set in your email of 11th January, the booking form failed to send from our mailbox. This seemed to explain to us why we had not received confirmation in writing from The Grand Hotel.


We also noted today that the email received from The Grand Hotel on 11th January made no reference to the fact that the Lytham Proms tickets were on sale from 23rd December 2013, as we have since discovered on your website page http://the-grand.co.uk/offers/lytham-proms-2-night-break. Given what our guests have experienced since, we feel that this information is pertinent and should have been conveyed to us at the point when The Grand Hotel finalised its intentions to operate this promotion during the same weekend as our proposed wedding.


You are aware that during our initial discussions in November, we enquired whether we could ‘block reserve’ rooms for the majority of our guests and we were dissuaded from doing so by hotel representatives, based on reassurances offered about how the hotel would manage our ‘Wedding Weekend’. On this basis, we acted in good faith, paid our deposit by the deadline set and continued to plan our wedding.


However, the apparent breakdown and/or miscommunication regarding the non-receipt of our booking form, what appears to be an on-going difficulty for some our guests to successfully book accommodation (such as, Mrs McCulloch’s email of 3rd February requesting accommodation, that has not been responded to) and the overall management of the situation to date, has made the relationship untenable for us.


We therefore feel that the most amicable and swift resolution to the mater for all, is a reversal on the payment made to The Grand Hotel on 13th January for £750 from Mr T.J. Coe’s account and that The Grand Hotel provide any guests associated with our wedding a full refund, without delay. We would ideally hope that The Grand Hotel agrees to this, as it would avoid the need to for us to pursue the matter any further.


We look forward to your written response to the matter and feel that a reasonable timeframe would be within 48 hours.



Yours sincerely,



Mr. Toby Coe & Miss. Sheelagh Goonan

Customer:

There are currently 5 rooms that our guests have booked, mainly on a pay-in-full/non refundable basis that we were asking to be refunded, we had to enquire with all guests as the hotel failed on numerous instances to associate the bookings with our wedding. On Thursday 6 February 2014, one of our guests tried to book 2 rooms and was told there were no rooms left, he questioned about the wedding and was told 'What Wedding, I don't have anything about a wedding on that day on my system, you'll have to speak to the manager, he'll call you in the morning' This never happened and we waited until Saturday evening to give them a chance to honour what they had said. We got wind of this on Thursday and enquired with the Wedding co-ordinator about the conversation. She called the Senior Receptionist/Deputy Manager in question and called us back to tell us that the member of staff hadn't said that. Whilst this was happening, the receptionist then took it upon herself to ring the guest back and abruptly take them to task about what they had allegedly said! Whilst this is outside of our main point, I feel that it was this unacceptable communication from the Hotel that had an impact on our confidence in them as an organisation, which we made reference to our in email (obviously not the specifics). It turns out that the manager, Mr Holland was on holiday on Friday 7 February anyway.

Ben Jones :

This is really a contractual issue, dealing with whether the contract was sold to you fairly or if there was a degree of misrepresentation. In addition, you will have some rights to try and recover the deposit based on common and consumer laws.


 


First of all one must consider the dealings and conversations you had with the hotel before you decided to make the booking. Whilst the hotel would not have had to disclose other marketing events they were holding, if you had specifically asked them at the time and they did not mention this when directly requested, then it could amount to a form of misrepresentation or breach of contract. It is important that they withheld this from you, whether negligently or intentionally, and following a direct request by you. So if you had not asked them directly about such events or asked questions that any reasonable person would have expected them to answer mentioning this, then you may not challenge this, otherwise you could.


 


In terms of getting the deposit back, then generally when a person places a deposit they enter into a legally enforceable contract with the other side. It is implied that they have accepted the deposit as security and as proof that you want to proceed with the contract.


 


As a business, 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 they have 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 filling the booking, the deposit should still be returned in full. It follows that a blanket non-refundable clause that entitles the seller to keep the deposit in all circumstances is most likely going to be unfair.


 


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 their position in this matter.


 

Customer:

Hi Ben

Customer:

That is what we think is the best action, Yes. We haven't responded yet.

Customer:

Hi Ben Thanks for your response, I understand that the contract is in place, based on the terms etc. That isn't in question. We just felt that it was indicative of the poor communications that have ensued from them. The dates weren't announced for the Proms in November when we spoke with them at pitch level, however having checked since, we have found out the event has been held in the first weekend of August for the last 5 years, since its inception, not sure on how we stand on that??

Ben Jones :

it would really come down to whether they knew of this event at the time you asked them about it - the history is indicative that they should have known at least of the strong possibolity of this happening on those dates even if it was not confirmed

Customer:

We did wonder about that!

Ben Jones :

it will be a relevant point, certainly something you can raise with them

Customer:

Hi Ben, In relation to your point '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..' Can I ask whether that is by ourselves or the seller? as the seller hasn't cancelled and doesn't seem to want to.

Customer:

Thanks for the 6:37PM response

Customer:

I am interpreting that to paragraph to be making reference to the seller cancelling..

Ben Jones :

Hi, it is just a cancellation in general - obviously ho has cancelled it will impact on the potential losses/costs that may be incurred and that can be offset against the deposit but in general the cancellation is just the general act of this occurring, regardless of who does it

Customer:

I think that would mean that if we cancel and they re-let the facility on that date, then we would be entitled to a refund.. This couldn't be proven until the date of 2nd August, I assume ... The tone in the email communication from Mr Holland, seems to be implying that we don't get that money back whether they are able to re-let the facility or not! I am right to form this interpretation?

Ben Jones :

yes correct, although one would hope that they would have secured a booking before the actual date

Customer:

Absolutely and they would do, however it is our unfortunate lack of trust in them, which leads us to believe that they wouldn't let us know that this was the case!

Customer:

I meant by 'they would do' as in if they were to get a booking for that date, it would be before, given the nature of the facility being an wedding/events suite. !

Ben Jones :

you can check that, you can always make a speculative enquiry posing as another customer

Customer:

That makes sense for the Function suite, absolutely. In terms of the rooms that our guests have pre-booked, does the premise stand that if they still have the capacity available of that number (5) or more rooms of those grade on the booking date, then we can possibly pursue that too on a similar basis?

Ben Jones :

this would be a bit more difficult because you would not have rights in that respect as the contract would not have been between you and the hotel, instead each individual guest will have to pursue that separately

Customer:

I thought as much, but thanks for confirming all the same. Maybe another reason why they wouldn't let us block book, I speculate to myself...

Ben Jones :

I can't say really, I wouldn't have immediately thought it is the reason but as you say, you never know

Customer:

My final clarification is detailed around the initial conversation ..... When I questioned the representative of the Hotel about events in general (I made specific reference to ask about events going on such as Lytham Club Day (In June as I know) and the Open as I lived in Lytham St Annes in the 90's, with specific intention around the photo opportunities on Lytham Green/WindMill and was re-assured that this would be OK. I recall that the representative mentioned that 'there are sometimes concerts in Lowther Gardens' again prompting me to respond 'well that's hardly club day, when one would expect the Lytham seafront to contain several thousand people, is it? 'Quite' was the response. However given that the Lytham Proms are on the Seafront/Green and directly in front of the WindMill and are labelled as 'The Lytham Proms' and that history should ideally be indicative, I still stand by the fact that the initial response back then was misleading and we were absolutely shocked to learn of the Event's date and 10,000 capacity and were amazed that something of this scale had been dismissed in response to the initial question that I put to the Wedding co-ordinator at the pitch. Obviously if the Golf Open were on, then hotel rooms would be scarce and at a premium. I stand by the fact that an event with a 10,000 capacity being headlined by XXXXX XXXXX, is of a magnitude certainly greater than the annual Lytham 'Club Day' and maybe even comparable to the Golf Open. On that basis I felt that the possible existence of such an event, really did warrant a mention back in November, history being a fairly valid and reasonable predictor of the future, and all!

Ben Jones :

you are correct and whilst it is certainly an argument that you can and should raise, regardless of your or my opinions, it is only for a court to decide whether this was done intentionally/negligently, if it would have had an impact and if it had amounted to misrepresentation or breach of contract.

Customer:

I appreciate that you can't comment and they are merely my own suppositions :) Actually I think another worthy point surrounds another Uncle who had booked 2 rooms by telephone, the booking was handled incorrectly in 2 ways: 1) They asked for a lower grade of Room and one of a higher grade, upon checking their confirmations on 09/02/14, they realised that they had been charged for two rooms of the higher grade. 2) Although both requested on the 'Pre-Paid' non-refundable basis, one of the booking confirmations states that the booking can be cancelled, When they telephoned the hotel 0n 09/02/14 to enquire about their rights to cancel on that particular booking, they were told by the receptionist 'Ignore that, the wrong one has been sent, you need to speak to the manger Mr Holland'. This is useful background to possibly strengthen any case that we may decided to proceed with.

Ben Jones :

well maybe but it is not related really to the main issues here which were the initial conversation, what was disclosed and what prompted you to book. Also remember this is for your uncle and the hotel to resolve, it is not linked to you contractual rights

Customer:

My own suppositions about the 'block booking by us' and implications I meant!

Ben Jones :

somewhat of circumstantial evidence there, but certainly no harm in using it

Customer:

I thought so with my Uncle's room... it's up to him. Thanks for all your help. Good Night!

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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