Holiday - Package holiday - Claimant booking last minute holiday through defendant company

Titshall v Qwerty Travel Ltd: Court of Appeal, Civil Division (Lord Justices Longmore, Tomlinson, Lady Justice Black): 15 December 2011

The claimant had booked, over the telephone, a last minute holiday to Corfu through the defendant company. He saw the holiday advertised on Teletext, proceeded to make the booking and departed from London the following morning. Whilst on holiday he suffered serious injuries as a result, he alleged, of attempting to open a sliding glass patio door which proved to be defective in its manufacture and so led to the glass shattering. The claimant commenced proceedings against the defendant.

The defendant contended that, at the relevant time, the claimant and his partner had been heavily intoxicated and, during a row, the claimant had fallen through, or had kicked, or had been forced through the glass pane. Further, it submitted, it had not owed any obligation to the claimant over and above that 'commensurate with its role as retail agent for the suppliers of accommodation at the hotel'. It contended that the claimant had entered into two separate contracts, one for the supply of return flights with one company and another, with a separate company, for the supply of accommodation for seven nights all inclusive.

Of principal importance was its contention that the claimant had not purchased a package within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992/3288 (the regulations). The parties agreed that the county court should resolve the preliminary issues of whether the defendant had sold or offered for sale a package within the meaning of the regulations and whether the defendant had been a party to the holiday contract. The judge held that the claimant had purchased two services at the same time but had done so separately.

He found, on the evidence, that the composite price had not been an inclusive one but rather an aggregate price and, accordingly, there had not been a sale of a package within the meaning of paragraph 2 of the regulations. The claimant appealed against that preliminary finding.

The claimant submitted that the judge had erred as the holiday had been sold at an inclusive price and so had been a package. The defendant conceded below and maintained his concession in the instant proceedings that if it was concluded that what was sold had been a package within the meaning of the regulations, then, on the facts of the instant case, it would follow that the defendant had been a 'retailer' and very probably an 'organiser' within the meaning of those regulations and so would be 'the other party to the contract' rendered statutorily liable for performance of the obligations arising under 'the agreement linking the consumer to the organiser or to the retailer, or to both, as the case may be'. Consideration was given to Council Directive (EC) 90/314 (on package travel, package holidays and package tours). The appeal would be allowed.

It was established law that there was a factual question to be resolved on a case by case basis. That question was whether the services were being sold or offered for sale as components of a combination or whether they were being sold or offered for sale separately, but at the same time. In other words, the court had to ask whether the relationship between the component parts of the package such as to mean that the consumer had bought and paid for them as a whole (see [20], [27]-[28] of the judgment).

The judge had erred in characterising his findings of fact as amounting to the claimant having purchased two services at the same time but separately. He had not purchased them separately; they had been sold to him as the component parts of the combination or package. In the instant case, although the transaction had had the potential to develop into an offer for sale and a sale of separate services, it had not developed in that way.

The defendant had offered a package which inevitably had had component parts, but where those parts had been presented for sale as a whole for an inclusive price which had comprehended the cost of putting them together as well as the cost of sourcing them. The context of the Teletext advertisement had been that of a last minute getaway at an inclusive price (see [24]-[25], [27]-[28] of the judgment).

The court would make a declaration that the defendant had been liable to the claimant for the proper performance of the obligations under the contract whereby the claimant had been provided with hotel accommodation for a period of seven nights (see [26]-[28] of the judgment). R (on the application of the Association of British Travel Agents Ltd) v Civil Aviation Authority [2007] 2 All ER (Comm) 898 applied.

Mark Simeon Jones (instructed by Harold Stock & Co Ltd, Ashton-under-Lyne) for the claimant; Dan Saxby (instructed by Plexus Law) for the defendant.