Loveholidays refund court ruling sets limits on consumer rights

OTA’s customer had claimed their money back due to change in hotel in Kos

A County Court judgment has shed important light on the limits to a consumer’s right to cancel a holiday and obtain a full refund due to Covid under the Package Travel Regulations (PTRs).

Judge Catherine Howells ruled in favour of Loveholidays owner We Love Holidays last week in its appeal against a district court ruling that it owed a full refund to a client who cancelled a holiday owing to a change of hotel.

The case of Kirk v We Love Holidays involved a package booking to Kos. The hotel booked was closed ahead of the Kirks’ departure but there was no Foreign Office (FCDO) advice against travel, flights were operating and other hotels open, and Loveholidays offered a comparable hotel nearby which the district judge accepted was a “like for like” substitute.

However, the Kirks refused the offer and claimed a full refund “due to the pandemic”. Loveholidays refunded the accommodation and transfers but not the flights.

The district judge at the initial hearing found in favour of the Kirks, ruling they were entitled to a full refund because the hotel was closed due to the pandemic and the PTRs allow for a refund due to “unavoidable and extraordinary circumstances at the place of destination”.

Stephen Mason, senior counsel at Travlaw, which handled the appeal at Wrexham County Court, noted permission to appeal was only granted at the third request.

However, on hearing the case Judge Howells found the closed hotel was not ‘the destination’ and there were no ‘extraordinary circumstances’ given the flights operated, a quality hotel was available and there was no advice against travel.

The judge also rejected an argument on behalf of the Kirks that the change of hotel was significant enough in itself to entitle them to cancel.

Mason said: “Loveholidays won the appeal and the whole industry won some helpful clarification of how the pandemic affects their legal responsibilities under the PTRs. It also shows the courts understand how difficult the pandemic has been for the travel industry.

“The case of Kirk v We Love Holidays and other recent cases are great news for companies facing claims involving UK quarantine for travellers on return or from those wishing to cancel despite lack of FCDO advice against travel to a destination, and for companies able to operate the holiday but needing to make changes to the holiday details.”