Parties

AuthorMatthew Chapman/Sarah Prager/Jack Harding/Dominique Smith/Thomas Yarrow/Henk Soede
Pages59-73

Chapter 2 Parties

2.1 This chapter considers the parties who are affected by the Package Travel Regulations 2018. Where there are significant changes to the rules from the Package Travel Regulations 1992, these are highlighted, but otherwise the reader is referred to previous editions of this work for a discussion of the provisions that will apply to cases still before the courts which are continuing under the old regime.

2.2 Regulation 15 of the Package Travel Regulations 2018 creates a framework of civil liability whereby the ‘organiser’ is rendered liable for the proper performance of the package contract irrespective of whether the performance of the package services is undertaken by that party or by some other travel service provider(s).1In other regulations,2liability is imposed on the ‘retailer’ of the package (as well as the organiser), sometimes regardless of whether a package contract comes into existence.3Before considering issues of civil liability imposed on different entities under each different regulation within the Package Travel Regulations 2018,4it is necessary to consider:

ƒ how the regulatory liabilities arise;
ƒ the parties who can enforce the regulatory liabilities; ƒ the parties on whom such liabilities are imposed.

PACKAGE TRAVEL CONTRACT

2.3 As set out in Chapter 1, for there to be a regulated package travel contract the arrangements which constitute the package must satisfy certain specified

1Considered in greater detail in Chapter 5.

2E.g. Package Travel Regulations 2018, regulation 4, see Chapter 4.

3See Package Travel Regulations 2018, regulation 5 and the imposition of criminal liabilities, see

Chapter 12.

4See Chapters 4 and 5.

60 Saggerson on Travel Law and Litigation

conditions. Regulation 2(1) defines the ‘package travel contract’ as ‘a contract on a package as a whole or, if the package is provided under separate contracts, all contracts covering the travel services included in the package’. As with other parts of the Package Travel Regulations 2018, it is important to remember that the provisions need to be looked at as a whole. It is impossible to understand the full significance of this definition of ‘the package travel contract’ without some insight into the nature of the parties that are subject to the Regulations’ reach.5

TRAVELLER

2.4 The ‘organiser’ is liable to the traveller for any failure to perform or improper performance of the package travel contract.6Regulation 2(1) defines the ‘traveller’ as ‘any individual who is seeking to conclude a contract, or is entitled to travel on the basis of a contract concluded, within the scope of these Regulations’. Under regulation 9, a traveller may then transfer the package travel contract once it is concluded to a transferee who satisfies all the conditions applicable to that contract.

2.5 The party liable for improper performance of a contract within the scope of the Package Travel Regulations 2018 is therefore liable to three classes of persons:

(a) An individual who is seeking to conclude the relevant contract.
(b) An individual who is entitled to travel on the basis of the concluded contract.
(c) The transferee.7

Individual seeking to conclude the contract

2.6 Interestingly, in its use of the word ‘individual’, the Package Travel Regulations 2018 differ from the text of the Package Travel Directive 2015. In its equivalent provision (Article 3(6)), the Directive uses the term ‘person’ which of course can refer to both legal and natural persons. In the minutes of the Transposition Workshop held on 18 May 2017, the European Council expressed the view that ‘both legal and natural persons can be “travellers” for the purposes

5The Package Travel Regulations 2018 helpfully remove the interpretative difficulty imposed by the Package Travel Regulations 1992, which defined the relevant contract as the agreement ‘linking’ the consumer to the organiser or retailer. For a discussion of the meaning of the word ‘linking’, see previous editions of this work and the passing remarks of Douglas Brown J on the point in Hone v Going Places Leisure Travel Limited [2001] EWCA Civ 947, [2001] All ER (D) 102 (Jun).

6As we see in Package Travel Regulations 2018, regulation 15, discussed in Chapter 5.

7See, also, Chapter 4.

of the Directive. Therefore, both the legal person as the party concluding the contract and the physical person actually travelling will be “travellers” for the purposes of the specific provisions of the Directive’.8An ordinary interpretation of the word ‘individual’ as used in the Package Travel Regulations 2018 would, however, seem to cover natural persons only. Nevertheless, there is nothing in any of the United Kingdom’s documents indicating it had any intention of deviating from the effect of the (maximum harmonisation) Directive in this regard.

2.7 At first sight, the definition in the Package Travel Regulations 2018 makes more intrinsic sense – a corporation cannot go on a holiday and does not (at least in the relevant sense) travel – but the divergence does have the potential to cause difficulties when it comes to provisions of the Regulations which expressly provide a remedy to the ‘traveller’ as opposed to the contracting party. For example, where a corporate entity purchases a number of package holidays for its employees9and the organiser cancels, what if any remedy does the corporation have against the organiser under the Regulations? Regulation 13 provides by way of a term implied into the contract that an organiser who cancels the package travel contract in certain circumstances should pay a full ‘refund’ of any payments made to the ‘traveller’. On the one hand, if the corporation cannot be viewed as the ‘traveller’ the implied contractual term is not to its benefit and, arguably, unenforceable; on the other hand, if the traveller is restricted in these circumstances to the person who goes on the holiday (the employee), the implied contractual term is arguably unenforceable because such a person cannot receive a ‘refund’ within the ordinary meaning of that term for monies they have not paid – they themselves have suffered no loss.

2.8 The divergence between the wording in the Package Travel Regulations 2018 and that of the Package Travel Directive 2015 is somewhat confusing, but under the ‘presumption of compliance’, it is likely that the English courts, should an issue arise in relation to the distinction, would simply interpret ‘individual’ to include legal as well as natural persons within its scope in line with the Directive’s use of the word ‘person’.

2.9 The words ‘seeking to conclude’ within the definition of a ‘traveller’ address the fact that many of the obligations imposed by the Package Travel

8Package Travel Directive Transposition Workshops, Fifth Workshop, 18 May 2017, question 19 on scope and definitions.

9Under a contract which would not otherwise be excluded by virtue of being a general agreement under regulation 3(2).

62 Saggerson on Travel Law and Litigation

Regulations 2018 on the ‘organiser’ of a package travel contract apply before the contract has been concluded.10

Individual entitled to travel under the contract

2.10 The Package Travel Regulations 1992 included within their equivalent scope both the person ‘who takes’ and the person who ‘agrees to take’ the package, and furthermore included provisions for ‘other beneficiaries’ for whom the package was purchased. Those Regulations envisaged circumstances in which one can agree to take a package without actually taking it, and agree to take it or take it without actually buying it. The regulators could easily have limited the scope of what was then defined as a ‘principal contractor’ to a purchaser, but they did not.

2.11 The Package Travel Regulations 2018 maintain this wide scope by defining a ‘traveller’ both as the individual who concludes or is seeking to conclude the contract, and/or as the individual who is ‘entitled to travel on the basis of a contract’. The Regulations are deliberately drafted widely in the interest of consumer protection. The definition is designed to cover a host of eventualities, including those circumstances where the package is provided free of charge. So the ‘traveller’ is any party who:

ƒ purchases the package and goes on it;
ƒ purchases the package but does not go on it (for example, corporate buyers,11generous gift donors and transferors);
ƒ agrees to purchase the package, but does not personally pay the bill (for example, because it is paid for by a business or family member);
ƒ goes on the package without buying it because it has been won in a prize draw or as a rewards bonus;
ƒ is the winner of a competition, but donates the prize to family or friends;
ƒ is, perhaps, any other person who is named on the travel itinerary or invoice.

2.12 The...

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