AuthorMatthew Chapman/Sarah Prager/Jack Harding/Dominique Smith/Thomas Yarrow/Henk Soede

Chapter 8 Hotels

8.1 For a comprehensive monograph on hotel law, see D Grant, H Douglas and J Sharpley (2007) Hotel Law: A Concise Guide to the Law of Inns and Innkeepers, Northumbria Law Press, Newcastle (derived from a series of articles in the ITLJ 2005–07). The monograph provides references to a large number of additional illustrative cases and contains detailed historical discussion of the evolution of modern hoteliers’ liabilities and as such has been an invaluable reference in the production of the summary that follows in this chapter.


8.2 Within recent living memory a tour operator (who shall, as they say, be nameless) supplied a package holiday tour to South Africa to a small group of English tourists. The brochure had announced that while in Cape Town the tourists would be accommodated at a famously luxurious and historic five-star hotel – ‘or similar’ (as the brochure had it in a small footnote). History does not reveal what administrative problems the tour operator had, but at all events on arrival in Cape Town the group was taken to a different (and obviously lower grade) establishment in the suburbs 30 minutes drive or more from the intended luxury hotel. Many of the guests (already disappointed at their accommodation’s lack of sophistication) were surprised on waking the next day to see ranks of senior citizens exercising gently on a large tarmac courtyard. The guests had, in fact, been accommodated in an old people’s home. The tourists’ many complaints resulted in a criminal prosecution under the Trade Descriptions Act 1968 – one of the charges being centred on the allegation that when promised a hotel the visitors had not been provided with a hotel.

8.3 This allegation proved more problematical for the prosecuting authority than might at first appear. The dictionary1has it that a hotel is ‘an establishment providing accommodation and meals for payment’. The place where the tourists

1Concise Oxford Dictionary, Oxford University Press, Oxford.

332 Saggerson on Travel Law and Litigation

were taken was an establishment; it provided accommodation and it provided meals all for which the tourists paid. In addition, it had communal lounges, television and radio (though not in the rooms), a swimming pool, and gardens as well as some basic and gentle sports and leisure facilities. In what sense, the tour operator asked rhetorically, was this old people’s home not a hotel? The resulting acquittal on this charge could hardly be described as triumphant, but one suspects it was inevitable in the circumstances. The tourists had not been allocated to the hotel they had good reason to think they would be sent to and they, no doubt, had good claims for breach of contract. None of this altered the fact that it was not self-evident2that their establishment fell outside that wide definition of a hotel.

8.4 On the other hand consider Powell v Thomson Holidays Ltd.3Mrs Powell booked herself and her husband a half-board Thomsons ‘Late Deal’ in Majorca over the telephone from ‘Sharon’. Under the deal, the guests would take pot luck and be allocated accommodation of a minimum standard on arrival in Palma. Mrs Powell was adamant that she had been expressly told by the sales rep, Sharon, that the accommodation would be in ‘a hotel’, a fact the defendant denied. On arrival in Majorca the Powells were sent to the ‘Ivory Playa Apartments’, a complex with a bar, restaurant, room service, chambermaids and other facilities one might expect of a hotel. The Powells’ room had a bed, table and chairs, and a small kitchenette. The Powells were furious with their accommodation. They were convinced they had booked ‘a hotel’ and that they were in an apartment. Mrs Powell telephoned Thomsons’ 24-hour holiday line to complain. She was told that, if she wanted to move to a bona fide hotel she would have to pay the difference between her (very cheap) Late Deal and the brochure price for the hotel, and this was £700. The next morning the Powells booked themselves on the next flight home. In the afternoon they met the local tour representative and told him they were leaving.

8.5 On their return to the United Kingdom the Powells claimed the full cost of their holiday, plus the cost of the flight home. The defendant contended that no guarantees had been made about the accommodation, save that it would be of a minimum standard. The defendant argued that, even had a hotel been guaranteed, the ‘Ivory Playa Apartments’ provided all the services of a hotel and to all intents and purposes was a hotel. The defendant noted that there could have been no claim at all had the block called itself a ‘hotel’ and had the Powells not had a kitchenette in their room. The defendant argued that, had there been a breach of contract, damages should be calculated on a loss of amenity basis, and that any loss of amenity was very small indeed. Further, the Powells had behaved wholly

2Bearing in mind the criminal standard of proof.

3Powell v Thomson Holidays Ltd, 28 April 2005, Exeter County Court (unreported) (see discussion at paragraph 7.64).

unreasonably in booking a flight home before they had either given their accommodation a chance or even spoken to the tour representative.

8.6 However, in the absence of any evidence from Sharon to the contrary, the judge found that Sharon had indeed guaranteed the Powells would be accommodated in a hotel. The judge then held that the ‘Ivory Playa Apartments’ was not a hotel. In DJ Wainwright’s words, ‘hotels are different from a block of apartments – they have communal areas, a formal dining area, and a general air of hustle and bustle not evident in a block’.

8.7 The starting point for the consideration of the liability of hotels and hoteliers has to be the basic, dual common law principle that a hotelier:4

(a) is duty bound to receive all persons who present themselves subject to their being capable of paying reasonable compensation for the sustenance and accommodation provided to them; and

(b) is liable as an insurer for guests’ property that is lost or stolen while on the hotel premises.

8.8 Historically, it was thought that travellers were subject to the special risk of being subjected to collusive dishonesty and criminal conspiracies between thieves and innkeepers as regards their property (hence the innkeeper’s liability as an insurer for lost and stolen goods), and that the risks and dangers associated with travelling abroad5were such that innkeepers should be obliged to accommodate all-comers6for their greater comfort and protection. These basic principles are now of more historic than practical importance, save to the extent that in the development of the law in recent years, changes have been based on and adapted to these common law principles, which is to say that legislation has built on the common law foundations rather than substituted a code of legal liabilities. This is nowhere more apparent than in the HPA 1956.


8.9 Section 1(3) of the HPA 1956 provides as follows:

4The liabilities of innkeepers by common custom of the realm, see Shacklock v Ethorpe Ltd [1939]
3 All ER 372.

5In the general sense as opposed to the ‘overseas’ sense.

6Subject to certain exceptions discussed below. Thus a proprietor who specifically excludes children, or tradespeople or coach tours is likely by such truculence to excuse himself from the liabilities imposed by the customs of the realm and the Hotel Proprietors Act 1956 (HPA 1956).

334 Saggerson on Travel Law and Litigation

In this Act, the expression ‘hotel’ means an establishment held out by the proprietor as offering food, drink and, if so required, sleeping accommodation, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received.

8.10 The above subsection may be thought to beg as many questions as it answers. It is worth setting out section 1(1) which it is thought is better understood when considered after section 1(3):

An hotel within the meaning of this Act shall, and any other establishment shall not, be deemed to be an inn; and the duties, liabilities and rights which immediately before the commencement of this Act by law attached to an innkeeper as such shall, subject to the provisions of this Act, attach to the proprietor of such an hotel and shall not attach to any other person.

8.11 One derives from the HPA 1956 the proposition that what is now termed a hotel is the same thing as an inn, and by a process of deduction, a hotelier is the same thing as an innkeeper. Inns and innkeepers were, as summarised above, historically things of special status at common law, but the combination of subsections (1) and (3) of section 1 of the Act means that we may now legitimately talk the plainer language of ‘hotels’ rather than that of the quainter ‘inns’. The key to the definition of a hotel it is submitted is the expression ‘without special contract’ which effectively means without advance booking or agreeing individual terms.7Accordingly, where a proprietor holds out his establishment as offering food, drink and (if required) accommodation on generally applicable terms to persons seeking such services8without the precondition of prior booking then he is running a hotel.9


8.12 Whether someone holds themselves out as offering the services and facilities of a hotel is a matter of fact and degree. A publicly displayed sign is likely to be sufficient evidence of a holding out, but not a necessary precondition.10One might call an establishment anything, but its legal character must be assessed by reference to what business is actually carried on there.

7Although the booking need not be very far advanced for a special contract to arise.

8Provided they fall within the definition of a ‘traveller’.

9Motels, guest houses, boarding houses, ‘private hotels’ or bed-and-breakfast...

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