Association of British Travel Agents Ltd v Civil Aviation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goldring:,MR JUSTICE GOLDRING |
| Judgment Date | 16 January 2006 |
| Neutral Citation | [2006] EWHC 13 (Admin) |
| Docket Number | Case No: CO/2828/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 January 2006 |
[2006] EWHC 13 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE GOLDRING
Case No: CO/2828/2005
Charles Haddon-Cave QC and Robert Lawson (instructed by Field Fisher Waterhouse, Solicitors) for the Claimant
Robert Griffiths QC and Andrew Tabachnik (instructed by the Defendant)
The issue
The claimant is the Association of British Travel Agents ("ABTA"). It is the leading trade association for travel agents and tour operators. The defendant is the Civil Aviation Authority ("CAA"). The Secretary of State as Interested Party has not appeared or made representations. One of the CAA's functions is "the licensing of the provision of accommodation in aircraft." At issue in this application for judicial review are the circumstances in which a travel agent is obliged to have an Air Travel Organiser's Licence ("ATOL"). At the heart of the dispute between ABTA and the CAA is the definition of "package" for the purposes of the Civil Aviation (Air Travel Organisers' Licensing) Regulations 1995 as amended in 2003 ("the ATOL Regulations"). ABTA challenges the CAA's view in that regard contained in its Guidance of 4 March 2005 under the rubric "Sale of Air Package Arrangements: Advice on the need to provide consumer protection" ("the Guidance"). It sets out how the CAA intends to interpret and enforce (including by possible criminal sanction) the applicable regulations.
The CAA also takes the point that judicial review is not in any event an appropriate remedy in the case.
The statutory background
The CAA was constituted by the Civil Aviation Act 1971. The provisions relating to it were consolidated in the Civil Aviation Act 1982 ("the Act"). It is section 3(b) of the Act, as amended, which provides that a function of the CAA is "the licensing of the provision of accommodation in aircraft."
Section 71 of the Act provides that,
"(1) Provision may be made by regulations made by the Secretary of State for securing that a person does not�
(a) make available, as a principal or an agent, accommodation for the carriage of persons�on flights�or
(b) hold himself out as a person who, either as a principal or an agent or without disclosing his capacity, may make such accommodation available,
unless he�holds and complies with the terms of a licence issued in pursuance of the regulations�";
As Lord Justice Gibson said when giving the judgment of the Court of Appeal in R (on the application of Jet Services Ltd.) v Civil Aviation Authority [2001] 2 All ER (Comm) 759 at page 771,
"The need for such licensing was perceived following a number of financial failures by tour operators providing package holidays�which left holiday makers stranded abroad or with no flight to take them on the holiday for which they had paid."
The ATOL is such a licence.
The European Council Directive on package travel, package holidays and package tours of 1990 ("the Directive")
The preamble, among other things, states,
"Whereas the consumer should have the benefit of the protection introduced by this Directive irrespective of whether he is a direct, contracting party, a transferee or a member of a group on whose behalf another person has concluded a contract in respect of a package."
By Article 1, the purpose of the Directive
"is to approximate the laws, regulations and administrative provisions of the Member States relating to [travel] packages sold or offered for sale in the territory of the Community."
By Article 2,
"1. "package" means the pre-arranged combination of not fewer than two of the following when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:
(a) transport;
(b) accommodation;
(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package.
The separate billing of various components of the same package shall not absolve the organiser or retailer from the obligations under this Directive�
5. "contract" means the agreement linking the consumer to the organiser and/or retailer."
By Article 4
"2. Member States shall ensure that in relation to the contract the following principles apply�
Annex (j) special requirements which the consumer has communicated to the organiser or retailer when making the booking and which both have accepted."
By Article 7
"The organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency."
The Directive is of course not limited to a package with the component of air travel.
Package Travel, Package Holidays and Package Tours Regulations 1992 ("PTR")
The PTR implement the Directive. They deal with consumer protection in respect of package travel, holidays and tours (see the preamble). They are not limited to packages involving air travel. The definition of package is in the same terms as in the ATOL Regulations: see paragraphs 20�3 below.
Paragraph 15 of the PTR sets out the "Liability of the other party to the contract for the proper performance of obligations under contract." By paragraph 15,
"(1) The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.
(2) The other party to the contract is liable to the consumer for any damage caused to him�"
By Regulation 16(1),
"The other party to the contract shall at all times be able to provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency."
Regulation 17 provides that the "other party to the contract" shall ensure a bond is entered into which is payable in the event of the insolvency of that other party.
An ATOL requires such a bond.
Regulation 2 defines "contract" as,
"the agreement linking the consumer to the organiser or the retailer or to both, as the case may be."
It defines "the other party to the contract" as,
"the party, other than the consumer, to the contract, that is, the organiser or the retailer, or both, as the case may be."
The regulations made under the Civil Aviation Act 1982
The ATOL Regulations were made under the Act. Part II deal with "Regulation of Provision of Accommodation in Aircraft." Paragraph 3 provides,
"(1) Subject to regulation 3(1A), only persons of the following descriptions may make available flight accommodation in the United Kingdom�
(b) a person who holds a licence authorising him to do so�
(c) a person who acts as agent on behalf and with the authority of a disclosed identified principal who is a licence holder�
(e) a person who acts as a ticket provider."
(1A)
(a) A person shall not make available flight accommodation which constitutes a component of a package in the capacity of an agent for a licence holder except where all the components of the package are made available under a single contract between the licence holder and the consumer.
(b) A person shall not make available flight accommodation which constitutes a component of a package in the capacity of a ticket provider.
(2) No person shall�hold himself out as a person who may make available flight accommodation unless:
(a)
(i) he is entitled to make available that accommodation as�a licence holder�[or] an agent for a licence holder�"
The first four words of paragraph 1 and paragraph 1A were added by the 2003 amendment of the Regulations.
Paragraph 1(2) of the ATOL Regulations defines "flight accommodation," "package" and "a ticket provider" in the following terms.
"[F]light accommodation" means accommodation for the carriage of a person on a flight�in any part of the world�
"[P]ackage" means the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price�
(a) transport;
(b) accommodation;
(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package, and
(i) the submission of separate accounts for different components shall not cause the arrangements to be other than a package;
(ii) the fact that a combination is arranged at the request of the consumer and in accordance with his specific instructions�shall not of itself cause it to be treated as other than pre-arranged�
�[A] ticket provider" means a person who, in respect of the making available of flight accommodation, supplies to the person from whom payment is accepted a valid ticket�"
The ticket provider is the person who writes out the ticket for the consumer. A travel agency which writes out such tickets is a provider.
The criminal sanction
Part IV provides for offences and penalties. A person who contravenes paragraph 3 of the Regulations may face a fine and up to two years' imprisonment on indictment.
The position of the airlines
For historical reasons, an airline itself does not need to have an ATOL.
The history of the 2003 Amendment...
To continue reading
Request your trial
-
R (Hidden Hearing Ltd) v Hearing Aid Council
...that provision. It is not necessary to have a factual basis upon which to make such a determination: see R (Association of British Travel Agents Ltd) v Civil Aviation Authority [2006] EWHC (Admin) 13. 33 However, in my view, there is an important difference between the ABTA case and this ca......
-
Sean Titshall v Qwerty Travel Ltd
...(Case C-400/00 [2002] ECR I-4051, here adds little. Its effect was summarised by Chadwick LJ in the ABTA case, The Association of British Travel Agents v Civil Aviation Authority [2006] EWCA Civ 1356 at paragraph 20 as follows:- "The requirement that the components of the package must be so......
-
The Civil Aviation Authority v Travel Republic Ltd
...CAA submitted that the construction it relies upon was supported by the decision of the Court of Appeal in The Association of British Travel Agents v The Civil Aviation Authority [2006] EWCA Civ 1356 in a judgment given by Chadwick LJ (with whose judgment Arden LJ and the President of the F......
-
Regulated Travel Arrangements
...the Directive. In relation to package travel contracts concluded by legal persons, Article 2(2)(c) may be relevant. 19 In ABTA v CAA [2006] EWHC 13 (Admin), a case dealing with the Package Travel Regulations 1992, Goldring J said at [161]: In my view, whether the agreement links the consume......
-
Table of Cases
...References are to paragraph numbers A v Finnair Oyj (Case C-832/18) ECLI:EU:C:2020:204, [2020] Bus LR 1002, CJEU 10.177 ABTA v CAA [2006] EWHC 13 (Admin), [2006] ACD 499, [2006] All ER (D) 54 (Jan) 1.13, 1.119, 3.9 ABTA v CAA [2006] EWCA Civ 1356, [2007] 2 Lloyd’s Rep 249, [2007] 2 All ER (......
-
Travel Agents
...3 P Watts and FMB Reynolds (eds) (2021) Bowstead & Reynolds on Agency (22nd edn) Sweet & Maxwell, London, article 1. 4 ABTA v CAA [2006] EWHC 13 (Admin), [2006] All ER (D) 54 (Jan). 5 ABTA (above) at [161]. GENERAL PRINCIPLES OF AGENCY 78 Saggerson on Travel Law and Litigation obligation up......