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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I have now been informed of a claim against me...

Resolved Question:

RE: [#CPQ-356-28772] Alex Watts
On the 24th December Alex Watts answered my original question (http://www.justanswer.co.uk/account/my-questions.aspx?L=T&al=1&utm_source=sys&utm_medium=email&utm_content=crev4_viewqtext&utm_campaign=GAcctWelcome&r=ems%7C2013-12-24%7C1335%7Cln=checkstatus_ln)
I have now been informed of a claim against me through the European Small Claims Procedure asking for:
a) The repayment of one day’s holiday €225
b) Refund of €61 to cover the last two nights’ accommodation bill
c) €25 court fee
d) €30 estimated general costs associated with the claim
The grounds for the claim are:
a) Breach of holiday contract. Walk Andalucia broke a contract, viz told the claimant that the 2 additional nights in a hostel in Havana would not be charged. They were inadvertently charged and claim that they were left without paid accommodation for the last two nights of their holiday in Havana. The accommodation was booked and they had to pay for it. However, Walk Andalucia did offer to refund the cost.
b) The client writes: “the balance of risk and safety should have dictated that the tour operator would cover the accommodation costs. The worst outcome for the company, if the costs fell to us, would be that it would have to try to recoup the relatively modest sum of €61. A possible outcome .... would be that we would not be able to pay for accommodation for the last two nights in Havana, a far worse situation than any the travel company risked. Leaving clients without paid accommodation at the end of their trip must be one of the worst failings for a tour operator. Walk Andalucia failed completely to fulfil its fiduciary responsibility to us as clients and did not act in our best interests.” This is the basis of their claim although the holiday advertised ended on the 9th December. The following two days were added on as a service to the clients.
c) The clients have also claimed that Walk Andalucia operated illegally by selling package holidays without a licence. They have been in touch with both the Commission for Aviation Regulation and the Civil Aviation Authority to try and destroy the company. They have also been in touch with Responsible Travel to besmirch our reputation.
What should we do now?
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 as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

Thank you for asking for me, but I see you were displeased with my previous answers so am unable to help on this occasion.

Customer:

I am sorry if you feel that I was not happy with your original answer. I was not displeased with your previous answers which I found very helpful. However, despite the fact that you did not feel they had a case, the clients have gone ahead and taken out a claim against me and I am simply asking whether these clients do have a case.

Expert:  Nicola-mod replied 3 years ago.
Hello,

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 3 years ago.

Yes please find another professional. This matter is now urgent. I must reply before the 7th April. Thanks.

Expert:  Nicola-mod replied 3 years ago.
Hello,

We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Expert:  Joshua replied 3 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

I have been asked to look at this for you. Would you like me to assist? If so please let me know and I will reviewyour previous exchange and the above.
Customer: replied 3 years ago.

Please assist by reviewing my previous exchange and the latest email.


Thank you.


Elaine Smith

Expert:  Joshua replied 3 years ago.

Thank you. I have reviewed the above and previous information. May I ask why you agreed to pay for his extra accomodation in the first place please? It seems to me if he decided to extend his holiday for two extra days, is it not reasonable to expect him to pay for his accomodation? Were you simply being nice or was there another reason you offered to pay for his extra nights accomodation?

If I decided to extend my stay I would expect to pay for my additional accomodation at the very least.

Could you kindly clarify for me?


Also have you any written evidence that you offered to pay for his extra nights accomodation previously?

Customer: replied 3 years ago.

I offered to pay for the additional accommodation as a service to the client. I have an email confirming this.

Expert:  Joshua replied 3 years ago.
Thank you. So to be clear this was not a gesture of goodwill on your part but the client paid you for this accommodation for you to book but you forgot that he had paid you and told the hotel that he was paying direct. Is this correct please?

If you were booking him the rooms and he paying you, were you charging him any commission on the rooms originally?
Customer: replied 3 years ago.

Dear XXXXX - This was a gesture of goodwill on my part. The client did not pay for this accommodation. I forgot that I had made this gesture and he had to pay the hotel direct. No commission was charged on the rooms.


 


I offered to refund the cost of the rooms as soon as I realised my mistake.


 


Elaine

Expert:  Joshua replied 3 years ago.
Thank you. That is very nice of you. Finally does you email you refer to state that it is a gesture of good will or words to this effect - so as to make clear you are doing so as a kind gesture as opposed to an obligation on your part?
Customer: replied 3 years ago.

Dear XXXXX



I did not mention that this was a gesture of goodwill. I merely reported that although it obviously was as the holiday ended on the 11th December the day on which all the other clients returned home. My email dated 23 Aug 13:



 


"Dear XXXXXal ... With regard to accommodation in Trinidad I am still waiting for photos but we can offer accommodation in Havana at the Hostal Peregrino el Encinar (see attached). There will be no additional charge for the extra nights' accommodation."




I also waived the high season supplement for Donal as per an email dated Tue 27/08/201: "With regard to the high season supplements, this is a charge that has been added by the Cubans for November/December holidays but, as it was not mentioned on the website, I have waived it in your case. I attach an updated invoice for your information."

Expert:  Joshua replied 3 years ago.
Thank you.The actions of your client seem quite extraordinary given your generosity. Either he is confused and is under the impression he had a contractual right to expect you to pay for his various changes of whims whilst on holiday which based on what you say is not the case or he has some other basis for grievance however he mentions none in his claim.

It is tempting to withdraw your offer of goodwill in the circumstances however he may seek to hold you to your offer to pay for the accomodation on grounds of estoppel so it is probably best not to at this stage and in any event I note you remain happy to pay for the same.

The position would be to use the "Answer Form" you should have received from the court to respond that you admit part of the claim, namley the cost of the accomodation but the balance is defended as are costs in relation to the claim as you have stood ready to pay the cost of the accomodation and the claimant has rushed to litigate on the matter.

You can defend the balance of the claim on the basis that you had no contractual liability to pay for the cost of his additional accomodation and offered to do so as a gesture of goodwill which you will honour despite the claimants unreasonable demands. As there is no breach of contract there is no basis to claim back part of the cost of the holiday which was fulfilled entirely on your part.

Issues as to licences are not relevant to the contactual dispute.

You can put the claimant to strict proof on the contractual obligations he alleges you have breached and the financial loss he claims he has suffered.

His claim would appear to be spurious in my view. If he is posting untrue allegations about your company you can consider a cease and desist letter requesting and requiring him to remove such postings failing which you reserve your right to issue proceedings against him for damages for any losses suffered by your company. In practice this can be difficult but a sternly worded letter can warn off people without the need for legal action.

Does the above answer all your questions or is there anything I can clarify or help you with any further?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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