Leading industry lawyers agree Foreign Office advice against all but essential travel is not legally binding on travel organisers.

However, lawyers have warned failing to refund customers who cancel due to Foreign Office (FCDO) advice could damage confidence in the sector and said courts could find in consumers’ favour if claims go to trial.

Sarah Prager, a barrister at law firm 1 Chancery Lane, told an Abta Travel Law Seminar: “Foreign Office advice does not carry legal importance. It does carry relevance.

“It is not legally binding. But we are trying to build confidence and refusing a refund is not likely to do that.”

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The industry has split over Abta’s policy that members fully refund customers when the Foreign Office advises against travel since Spain joined the UK’s quarantine-restrictions list in July.

Online travel agents On the Beach and Love Holidays quit Abta this month over the policy.

The OTAs agree to refund hotel and transfer costs when clients cancel due to the advice, but only to refund flights if airlines cancel and pay refunds.

Regulation 12.7 of the 2018 Package Travel Regulations gives consumers the right to cancel a package booking with a full refund in the event of “unavoidable and extraordinary circumstances” at the destination “or its immediate vicinity” which “significantly affect the performance of the package or the carriage of passengers to the destination”.

Rhys Griffiths, partner and head of travel at Fox Williams, told the Abta Travel Law Seminar: “Whether Regulation 12.7 will apply depends what the situation is.”

He said: “If the Foreign Office advises against travel, historically that meant there was a serious situation in resort. Then Regulation 12.7 of the Package Travel Regulations is triggered.

“Where this issue has arisen is the way Foreign Office advice is used. Blanket, worldwide restrictions lead to quarantine.”

Griffiths insisted: “Many companies have criticised the approach. The issue is around situations where Foreign Office advice is used maybe for public health reasons in the UK.”

He argued: “if the only thing your terms and conditions promise is to make a booking, and you’re not promising anything else, there is no contractual right over and above Regulation 12.7.”

Farina Azam, partner and travel lead at Kemp Little, agreed: “Ultimately, it comes down to an interpretation of the conditions.”

But she suggested: “If you want to overrule Foreign Office advice [by not cancelling holidays], that would need to be made clear in the terms and conditions at the time of booking.

“The EC has issued guidance on how to interpret the regulation and Foreign Office advice would be strong evidence that the regulation applies.”

Azam warned: “If a case goes to court, a court would come down on the side of the customer.”

Prager argued: “Does Foreign Office advice against travel inevitably trigger a refund? No, it only does if what happens affects the destination.”

But she added: “We don’t know what the courts are going to do with these Covid cases.”

The consumer’s right to cancel in “unavoidable and extraordinary circumstances” was introduced with the new Package Travel Regulations in 2018.

Azam noted: “This the first time this cancellation right has really come into its own.”

Abta has made clear it’s policy that members should cancel and refund customers in line with Foreign Office advice is not based on the Package Travel Regulations.

John de Vial, Abta head of membership and financial services, told the recent Travel Weekly Future of Travel Summit: “There is real danger in trying to unravel 30-plus years of the way we look at Foreign Office advice even if we don’t agree with the application of it in this pandemic.

“The Abta logo stands for consumer confidence.  That is fairly fundamental.

“It may or may not be the legal analysis aligns with that when the courts finally get to this. But our board has taken the view it’s fundamental.”

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