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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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FACTS 27 October 2013 1. Claimant agreed to take his wife

Resolved Question:

FACTS
27 October 2013
1. Claimant agreed to take his wife on a luxury holiday to Japan to celebrate her birthday on 7th April 2014. Royal Caribbean International website showed availability of several mini-suites on “Voyager of the Seas” departing Singapore, on her birthday, for a 10 day cruise to Yokohama, specifically the preferred suite 9328.
2. Claimant contacted Business Flights Ltd to enquire about connecting arrangements between Manchester and Singapore and Tokyo to Manchester in Business Class to meet the Cruise Ship itinerary with pre and post cruise accommodation.
28 October 2013
Business Flights Ltd provided a package proposal which was accepted by the Claimant and a contract down payment was provided. Terms and conditions accepted as per published on the Business Flights Ltd website and as amended by e-mail by Business Flights Ltd in the package offer.
7 November 2013
Claimant contacted Business Flights Ltd by phone and provided full Debit Card details authorising Business Flights Ltd to draw down the balance of £6185.00 as full payment for the agreed package, details being accepted on behalf of Business Flights Ltd by Senior Sales Consultant Ms. Emily Ranu.
Letter dated 13 December 2013 from Travel Trust Association Ltd
On 17th December 2013 Claimant received a letter from Travel Trust Association Ltd (TTA) enclosing a cheque for £1,957.00 as a refund of monies being held in trust on behalf of Business Flights Ltd purporting to be full and final settlement of any liability by TTA under the booking for travel in April 2014.
17th December 2013
Business Flights Ltd advised the Claimant by telephone that all accommodation on “Voyager of the Seas” was allocated and that the package agreed on 28th October 2013 could not be delivered.
Claimant asserts that by accepting the payment on 28 October 2013, Business Flights Ltd entered into a binding contract according to PTRS to deliver a package holiday as described in their e-mail of 28 October 2013 and that delivery of each portion was warranted as per Paragraph 6 of the Regulations.

Claimant further asserts that the contract as presented on the Package Offer E-mail stipulates:

“All flights and air holidays sold by Business Flights are ATOL protected. OUR ATOL NUMBER IS XXXXX We also act as a retail agent for ATOL protected tour operators and other agencies governed by the Civil Aviation Authority. All funds paid to Business Flights are held in Business Flights Trust Account; all bookings made with Business Flights are financially protected under the relevant supplier's customer protection bonds.”

This statement making no reference to Travel Trust Association Ltd and as such is contravening the requirement of Paragraph 9 to Schedule 1 of the PTRS and constituting a failure under Paragraph 5 of the Regulations to provide adequate and relevant information in the brochure. Such omission also failing to meet the requirements of Paragraph 7(1)(c) of the Regulations.

Claimant made several telephone calls to Business Flights Ltd and exchanged e-mails between 7th November and 17th December 2013 requesting details of the accommodation booking on “Voyager of the Seas” stressing the requirement to maintain the bookings as per the contract.

At Business Flights Ltd specific request, Claimant was requested to contact and supply information to a third party, namely Travel Trust Association Ltd, where he complied promptly on 12 November and according to the request.

Under Paragraph 13 of the Regulations, upon the failure of the Organiser, Claimant has a statutory entitlement to remedies amongst which are the return of monies paid, as soon as possible, and appropriate compensation. Claimant asserts that refund of monies was delayed to the point where it became impossible to make alternative arrangements and Claimant was denied the opportunity to secure the content of the package through an alternative provider.

Paragraph 14 of the Regulations also stipulates an entitlement to compensation for the Claimant where no acceptable alternative package is offered under the contract.
Claimant has exhausted the Complaints Procedure of both Travel Trust Association Ltd and Business Flights Ltd without satisfaction. On 7th February 2014 Business Flights Ltd responded to the Claimant with a derisory offer of a £100 Credit Note per passenger against any future long haul flight booking together with an apology for inconvenience caused.
Heads of Claim
Claimant has mitigated losses and consequential damage by taking independent measures. The negligence and failure to perform by Business Flights Ltd has lost any opportunity for restitution or recovery of the agreed contractual booking. Nevertheless, the Claimant asserts his rights to appropriate compensation under the PTR’S Paragraphs 13(3) and 14(3) together with any other remedies available in law.
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts : Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.
Alex Watts : What is it you would like to know about this please?
Customer:

I need to know if I have arealistic claim for compensation and if the Small Claims Court is the appropriate next step

Alex Watts : Have you submitted a claim yet?
Alex Watts : Were you insured? How much have you lost?
Customer:

I have written to the company under the complaint procedure and received a derisory offer of a credit note for £200 and an apology for inconvenience

Customer:

I was not insured and suffered no direct financial loss.



Heads of Claim


Claimant has mitigated losses and consequential damage by taking independent measures. The negligence and failure to perform by Business Flights Ltd has lost any opportunity for restitution or recovery of the agreed contractual booking. Nevertheless, the Claimant asserts his rights to appropriate compensation under the PTR’S Paragraphs 13(3) and 14(3) together with any other remedies available in law.


In determining the Heads of Claim, the Claimant is conscious of the guidance provided by Lord Justice Ward in the Court of Appeal regarding Milner & Anor v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389 and his statement ‘the issue, said to be of significance for the travel industry, is this: what is the correct measure of damages for a ruined holiday?’ He went on to identify the different heads of loss which could be claimed, including pecuniary loss (diminution in value of the holiday), consequential ­pecuniary loss (for example, out of pocket expenses), physical ­inconvenience and discomfort, and mental ­distress. In that case, The Court of Appeal reduced the damages for diminution in value to £3,500, about one-third of the price eventually paid, and awarded nothing for the cost of the gowns, on the basis that the cruise was ended by agreement. The judgment is of most interest for its analysis of the damages for distress and disappointment, which were reduced to £4,000 for Mr Milner and £4,500 for Mrs Milner.


Lord Justice Ward stressed that damages awarded under this head needed to be consistent with damages awarded in other cases. He considered that awards in other holiday claims would not be particularly good comparables, as the facts in such cases were infinitely different. However, in paragraph 37 of his judgment he went on to refer to different ‘brackets’ of awards which had been extracted from other decisions by counsel for Carnival, showing that awards were highest for holidays involving a marriage abroad (where awards had ranged from £4,360 to £4,406 after adjustment for inflation), then for honeymoons (£321 to £1,890), then for special holidays (£264 to £1,161), and finally for ‘run of the mill’ holidays (£83 to £876).


Diminution Pecuniary Loss



“Voyager of the Seas” Mini-suite available in 2014/Far East has a value of £442.00/day. The Claimant has booked on “Adonia” in best available outside accommodation at £247.00/day. Based on a 10 day cruise, Claimant claims £1,950.00 as diminution. (See: Special Note below)


Consequential Pecuniary Loss


Claimant has mitigated consequential losses by making independent arrangements for an alternative cruise at a different time.


Loss of Amenity, distress and disappointment


Claimant had made the booking with Business Flights Ltd on 28th October 2013 to secure a luxury cruise to Japan coinciding with Mrs. Whitehead’s birthday on 7th April 2014 to include accommodation in one of her favourite cities, Singapore and providing time in Tokyo to enjoy the city and visit Mount Fuji in the Spring Weather. Due to the Business Flights Ltd failure to perform under the contract and their lack of consumer care, the Claimant has been unable to fulfil the promises and expectation which he and Mrs Whitehead thought had been secured. Based on the guidance of Lord Justice Ward for a special birthday, Claimant suggests that compensation under this head would be appropriate at £950.00 for the Claimant and £1,000 for Mrs. Whitehea

Alex Watts : What is the total value of your proposed claim?
Alex Watts : Why were you not insured, this would have mitigated your loss
Customer:

About £4,000

Customer:

Travel insurance does not cover predeparture breach of contract

Alex Watts : Can you quantify this loss? Why were you not insured?
Alex Watts : But you said you did not have insurance and I asked why?
Alex Watts : This is a question a judge would ask.
Customer:

I took out travel insurance but there is no cover for supplier breach of contract prior to departure

Customer:

My losses and damages are as I have described to you

Customer:



Heads of Claim


Claimant has mitigated losses and consequential damage by taking independent measures. The negligence and failure to perform by Business Flights Ltd has lost any opportunity for restitution or recovery of the agreed contractual booking. Nevertheless, the Claimant asserts his rights to appropriate compensation under the PTR’S Paragraphs 13(3) and 14(3) together with any other remedies available in law.


In determining the Heads of Claim, the Claimant is conscious of the guidance provided by Lord Justice Ward in the Court of Appeal regarding Milner & Anor v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389 and his statement ‘the issue, said to be of significance for the travel industry, is this: what is the correct measure of damages for a ruined holiday?’ He went on to identify the different heads of loss which could be claimed, including pecuniary loss (diminution in value of the holiday), consequential ­pecuniary loss (for example, out of pocket expenses), physical ­inconvenience and discomfort, and mental ­distress. In that case, The Court of Appeal reduced the damages for diminution in value to £3,500, about one-third of the price eventually paid, and awarded nothing for the cost of the gowns, on the basis that the cruise was ended by agreement. The judgment is of most interest for its analysis of the damages for distress and disappointment, which were reduced to £4,000 for Mr Milner and £4,500 for Mrs Milner.


Lord Justice Ward stressed that damages awarded under this head needed to be consistent with damages awarded in other cases. He considered that awards in other holiday claims would not be particularly good comparables, as the facts in such cases were infinitely different. However, in paragraph 37 of his judgment he went on to refer to different ‘brackets’ of awards which had been extracted from other decisions by counsel for Carnival, showing that awards were highest for holidays involving a marriage abroad (where awards had ranged from £4,360 to £4,406 after adjustment for inflation), then for honeymoons (£321 to £1,890), then for special holidays (£264 to £1,161), and finally for ‘run of the mill’ holidays (£83 to £876).

Customer:



Diminution Pecuniary Loss



“Voyager of the Seas” Mini-suite available in 2014/Far East has a value of £442.00/day. The Claimant has booked on “Adonia” in best available outside accommodation at £247.00/day. Based on a 10 day cruise, Claimant claims £1,950.00 as diminution. (See: Special Note below)


Consequential Pecuniary Loss


Claimant has mitigated consequential losses by making independent arrangements for an alternative cruise at a different time.


Loss of Amenity, distress and disappointment


Claimant had made the booking with Business Flights Ltd on 28th October 2013 to secure a luxury cruise to Japan coinciding with Mrs. Whitehead’s birthday on 7th April 2014 to include accommodation in one of her favourite cities, Singapore and providing time in Tokyo to enjoy the city and visit Mount Fuji in the Spring Weather. Due to the Business Flights Ltd failure to perform under the contract and their lack of consumer care, the Claimant has been unable to fulfil the promises and expectation which he and Mrs Whitehead thought had been secured. Based on the guidance of Lord Justice Ward for a special birthday, Claimant suggests that compensation under this head would be appropriate at £950.00 for the Claimant and £1,000 for Mrs. Whitehead

Alex Watts : Yes I saw.
Alex Watts : You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.
Alex Watts : If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.
Alex Watts : The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.
Alex Watts : If the matter is defended it will be set down for a trial. As the claim is for £10,000 or less it will be a small claim and you will not need representation.
Alex Watts : But it is better to claim too much and have it reduced rather than claim too little because you can't claim more.
Alex Watts : Can I clarify anything for you about this today please?
Customer:

OK I will send a Pre Action notification with all the facts, evidence and caselaw stating that that they have 14 days to respond and either agree to mediation or receive a Small Claim

Alex Watts : Normally small claims offer mediation.
Alex Watts : Can I clarify anything else?
Customer:

Sould I rely on the Small Claim offer or should \I volunteer mediation?

Customer:

It is cheaper to agree before the claim

Alex Watts : you can try but £200 to £4000 is a big difference.
Alex Watts : Does this help?
Customer:

OK Thanks.

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