An industry consensus that tour operators cancel holidays and refund customers if the Foreign Office advises against travel “is breaking down”, says a leading travel lawyer.

Travlaw senior counsel Stephen Mason highlighted that breakdown yesterday amid sharply differing industry responses to Foreign Office advice against all but essential travel to Spain.

The biggest tour operators, Tui and Jet2holidays, cancelled holidays and offered customers refunds, rebooking or refund credit notes after the Foreign Office advised against travel to Spain from July 26.

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But leading online travel agencies (OTAs) On the Beach and Love Holidays noted flights were continuing and accommodation open and said they would only refund packages in full where an airline cancelled and paid refunds.

Mason said: “Where the Foreign Office advises against all but essential travel, there has always been a consensus that, as a tour operator, you cancel and pay refunds.

“That is beginning to break down. It’s a new area in the law and one day the courts will decide.”

Abta confirmed on Wednesday that members must offer customers a refund on holidays if the Foreign Office advises against travel. On the Beach and Love Holidays are Abta members.

Mason is co-author, with Abta head of legal services Simon Bunce, of Holiday Law – the leading travel law reference book.

But Mason insisted: “It’s not illegal to travel if the FCO advises against travel – it’s not illegal to go or to run a trip.”

Speaking on a Travlaw webinar, he said: “What are the pitfalls? There are clearly going to be test cases which will be a battle between the court’s natural sympathy for the consumer and the actual wording of the Package Travel Regulations [PTRs].”

Mason went so far as to suggest: “It may be there is a difference legally between a traditional package – a single contract package – and a multi-contract package where the consumer makes a contract with a hotel and a contract with an airline.

“If it’s the latter, I can see an argument that the consumer has a contract with the airline and the airline is not cancelling.

“A court could decide there is a difference.”

But he added: “The whole point of the PTRs was to create a level playing field between traditional tour operators and OTAs.”

Mason acknowledged a customer who travelled against Foreign Office advice and subsequently contracted Covid-19 “might try a claim”.

But he argued: “They would have to clear a significant number of hurdles. They would have to show the cause of the illness was the holiday, that the hotel was negligent.” However, he conceded the chances of a successful claim “improve in the consumer’s favour if you travel against Foreign Office advice”.

Mason noted: “It would be unthinkable to take people [away against Foreign Office advice] and not have liability insurance.”

He added: “There is the question of informed consent. In my opinion, you would need the informed consent of the consumer if you take them to a destination against Foreign Office advice, and you would need to go as far as you can to demonstrate you tried to get that.”

Absent of Foreign Office advice against travel, Mason said: “There is a consensus that if all that happens is returnees from a country need to quarantine at home, you can continue to operate and people can continue to travel. If they choose not to travel, normal cancellation charges apply.”

Asked whether a customer could cancel a holiday in the event of a local lockdown where they live, Mason said: “A local lockdown does not stop you travelling abroad. If people don’t want to travel, cancellation charges would apply.”

When cancelling holidays in line with Foreign Office advice, he added: “If the government advice is for two weeks, then that is the period. If the government advice is indeterminate, you cancel on a rolling basis two or three weeks ahead. It’s far too soon to cancel a holiday in October now.”

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