Mount Etna has recently erupted and, currently, I do not know if there is a danger of pyroclastic flow onto the happy tourists of Catania in Sicily.
Holiday disappointments do not usually come in such dramatic form as pyroclastic flows, being generally confined to poor accommodation, missed flights, poor food or misrepresentations about the state of completion of the hotel etc.
(Of course, travel itself can be a revelation, as witnessed by an apochryphal travellerâs sour remark on his return from India, âMyrna doesnât like povertyâ? (Myrna being his spouse and travelling companion).
Myrna aside, the economic benefits of mass tourism (this post is ignoring environmental issues) has led to special legal provisions to protect some holiday consumers.
If the tourist buys a package holiday in Ireland, the Package Holidays and Travel Trade Act 1995 will apply.
The Act is of great benefit to “consumers”. A consumer is a person who buys a “package” or for whom a “package” is bought. A package is a combination of two or more of:-
c) other significant elements of a tourist service nature.
If, as is now common, a consumer assembles the package himself/herself, the Act will not apply.
Under the Act contracts for the sale of package holidays must be in writing and must contain the details set out in the Act (generally, the exact details needed to travel efficiently and enjoy accommodation).
If changes are made the tour operator must notify the consumer promptly to allow a decision to be made whether to accept the changes or seek a refund. In some circumstances the consumer will be entitled to compensation for any such (early) failure on the part of the operator.
The Act makes provision for criminal penalties for some breaches of the Act, but this post is not the place to consider those.
The main provision on civil liability is in Section 20 of the Act. The tour operator is liable to the consumer for the proper performance of the obligations under the contract. Essentially, the Section is one of strict liability with some defences.
A very important element in any package holiday contract is the question of jurisdiction. Jurisdiction, as an issue, is the right of the court of a particular country to adjudicate on a dispute between litigants. The European Union has introduced legislation on the topic in the form of EC Regulation 44/2001.
Article 15 of the regulation, defining a “consumer”, provides:-
1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:
……..(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.
2. Where a consumer enters into a contract with a party who is not domiciled in the Member State but has a branch, agency or other establishment in one of the Member States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.
3. This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.
Articles 16, (allocating a choice of jurisdiction to the consumer) and 17 of the Regulation provide:-
1. A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.
2. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.
3. This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.
The provisions of this Section may be departed from only by an agreement:
1. which is entered into after the dispute has arisen; or
2. which allows the consumer to bring proceedings in courts other than those indicated in this Section; or
3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State.
As a consequence of the Regulation a consumer who contracts with someone in another EU member state (where that person “…directs such activities to that Member State or to several States…”) is at liberty to issue proceedings in the state of the consumer’s domicile or the defendant’s domicile where a dispute arises on the contract.
Needless to say, a consumer would, almost invariably, choose to issue proceedings in the courts of the Sate of his own domicile. (Domicile will usually correspond with residence).
The burden of proving that s/he is a consumer will lie on the “consumer”. Article 16 will apply only where the provisions of Article 15 have been met. (The default position under the Regulation is that proceedings can only be issued in the courts of the state of the domicile of the defendant.)
If, as a consequence of breach of contract (within the meaning of Section 20 of the Package Holidays and Travel Trade Act 1995,) a person suffers personal injury, the injured person may issue proceedings in the state of his/her domicile (Ireland) for that breach and recover compensation.
Such litigation will not be as easily prosecuted as it would be if the personal injury was sustained in Ireland but it will be much easier than prosecuting the same action in a foreign jurisdiction.
As remarked earlier, none of the matters discussed here will apply if the “consumer” buys his/her holiday elements separately, over the internet, say. In such circumstances the ordinary law of contract will apply and the courts having jurisdiction will be the courts of the domicile of the defendant.
Supreme Court judgment in the Scaife case expected soon (if not out already). Should be interesting if we start developing some jurisprudence on the 1995 Act. Brian