Agents have been advised to carefully study a Court of Appeal ruling against online travel agent Qwerty Travel that concluded it had sold a package to a customer who was hurt while on holiday.
The outcome of the hearing, which took place on November 29, 2011,was highlighted on Twitter yesterday by Julia Lo Bue-Said, leisure director of consortium Advantage Travel Centres.
In a post on the micro-blogging site she wrote: “Case all trvl agents need to be aware of when putting their own packages together #flightplus Titshall v Qwerty Travel.”
In the judgement, dated December 15, 2011, Lord Justice Tomlinson overturned a previous District Court ruling from February last year that Qwerty Travel had not sold a package to customer Sean Titshall in 2006.
While on holiday in Corfu with his girlfriend Titshall, an amateur boxer who wanted a break from training before an important fight, was injured after a glass patio door in his room shattered.
Although the exact circumstances of how the door had come to be broken were contested, Titshall claimed Qwerty Travel was liable because it had sold him a package.
An original hearing at Dartford County Court found in favour of Qwerty Travel that the holiday, sold to Titshall on the night before departure after he saw an advert on Teletext Holidays, was sold as discreet component parts for an aggregate price.
A previous High Court case Abta brought against CAA directives in what constitutes a package holiday had ascertained a package is not created if the components of a holiday are sold separately and for the sum of their individual prices, like the ingredients of a meal bought in a supermarket.
But Lord Justice Tomlinson said he did not agree with the original judgement in this case, saying he believed the components were not sold separately but as part of a pre-arranged combination or package.
In particular, he seized on the existence of “service costs” charged to Titshall which he said suggested there was a cost associated with Qwerty Travel putting the arrangements together as a pre-arranged package.
He concluded: “While… I can see that the transaction had the potential to develop into an offer for sale and a sale of separate services, it did not develop in that way.
“Qwerty offered a package which inevitably had component parts – it would not otherwise have been a package – but where those parts were presented for sale as a whole for an inclusive price which comprehended the cost of putting them together as well as the cost of sourcing them.
“There is no principled basis upon which one can conclude that any particular proportion of the service costs should be attributed to the sale of the flights or to the sale of the accommodation, and thus whilst the sale of two services may have been identified, there is no way of ascertaining what is the total cost of either of them.”
He went on: “I would declare that Qwerty is liable to Mr Titshall for the proper performance of the obligations under the contract made on 24 September 2006 whereby Mr Titshall was provided with hotel accommodation at the Ermones Beach Hotel Corfu for the period 25 September – 2 October 2006.”
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