Sean Titshall v Qwerty Travel Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lady Justice Black,Lord Justice Longmore,and |
| Judgment Date | 15 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1569 |
| Date | 15 December 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/0817 |
[2011] EWCA Civ 1569
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DARTFORD COUNTY COURT
District Judge Glover
9TS02690
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lady Justice Black
and
Lord Justice Tomlinson
Case No: B3/2011/0817
Mr Mark Simeon Jones (instructed by Harold Stock & Co) for the Appellant
Mr Dan Saxby (instructed by Plexus Law) for the Respondent
Hearing date : 29 November 2011
This appeal raises a question as to the proper application of The Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992 No 3288, to which I shall refer hereafter as "The Package Travel Regulations". Those Regulations were made under s.2(2) of the European Communities Act 1972 in order to give effect, in domestic legislation, to the Council Directive of 13 June 1990 on Package Travel, Package Holidays and Package Tours (90/314/EEC), to which I will refer hereafter as "the Directive".
The matter comes before the court by way of an appeal against a determination of a preliminary issue by District Judge Glover in the Dartford County Court. In brief outline the Claimant/Appellant Mr Titshall booked a holiday in Corfu through (I use a deliberately imprecise word) the Defendant/Respondent Qwerty Travel Limited, to which I shall refer hereafter as "Qwerty". Whilst staying at the Ermones Beach Hotel in 2006 he suffered serious injuries as a result, he says, of his attempt to open a sliding glass patio door which proved to be defective in its manufacture, in consequence of which the glass shattered. Qwerty says that at the time Mr Titshall and his partner, who had accompanied him on holiday, were heavily intoxicated and engaged in a row which generated a tussle, in the course of which he fell through, or kicked, or was forced through the glass pane. That aspect of the factual dispute remains to be tried and I need say no more about it.
In addition to joining issue with the Claimant's account of how he came by his injuries, Qwerty denies that it owed any obligation to Mr Titshall over and above that "commensurate with its role as retail agent for the suppliers of accommodation at the hotel". In fact Qwerty says that Mr Titshall and his partner (but I will henceforth ignore her) entered into two separate contracts, one with First Choice for the supply of return flights between London Gatwick and Corfu on 25 September and 2 October 2006, and another with a company called "Hotels4U. com" for the supply of seven nights all inclusive accommodation between those dates at the Ermones Beach Hotel. Critically, Qwerty pleads at paragraph 2 of its Defence that Mr Titshall "did not purchase a package within the meaning of the 1992 Regulations from the Defendant". Although this may be pedantry, the relevant question is in fact whether Qwerty sold or offered for sale a package within the meaning of The Package Travel Regulations.
I turn then to the Regulations, in order to place into context such evidence as the District Judge heard and considered as to the circumstances in which the contract or contracts came into being. The Regulations provide, so far as material:-
"Whereas the Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to consumer protection as regards package travel, package holidays and package tours;
…
Interpretation
2.(1) In these Regulations -
"brochure" means any brochure in which packages are offered for sale;
"contract" means the agreement linking the consumer to the organiser or to the retailer, or to both, as the case may be;
"the Directive" means Council Directive 90/314/EEC on package travel, package holidays and package tours;
"offer" includes an invitation to treat whether by means of advertising or otherwise, and cognate expressions shall be construed accordingly;
"organiser" means the person who, otherwise than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer;
"the other party to the contract" means the party, other than the consumer, to the contract, that is, the organiser or the retailer, or both, as the case may be;
"package" means the pre-arranged combination of at least two of the following components 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,
andand(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 (whether modified or not) shall not of itself cause it to be treated as other than pre-arranged;
"retailer" means the person who sells or offers for sale the package put together by the organiser.
(2) In the definition of "contract" in paragraph (1) above, "consumer" means the person who takes or agrees to take the package ("the principal contractor") and elsewhere in these Regulations "consumer" means, as the context requires, the principal contractor, any person on whose behalf the principal contractor agrees to purchase the package ("the other beneficiaries") or any person to whom the principal contractor or any of the other beneficiaries transfers the package ("the transferee").
Application of Regulations
3.(1) These Regulations apply to packages sold or offered for sale in the territory of the United Kingdom.
…
Liability of other party to the contract for proper performance of obligations under contract
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."
The expressions used in the Package Travel Regulations must obviously be given a meaning consistent with the purposes of the Directive which required their promulgation. Some guidance is to be derived from the recitals to the Directive, which was adopted, as appears from Article 1, "to approximate the laws, regulations and administrative provisions of Member States relating to packages sold or offered for sale in the territory of the Community." Those recitals include:-
"Whereas the national laws of Member States concerning package travel, package holidays and package tours, hereinafter referred to as 'packages', show many disparities and national practices in this field are markedly different, which gives rise to obstacles to the freedom to provide services in respect of packages and distortions of competition amongst operators established in different Member States;
Whereas the establishment of common rules on packages will contribute to the elimination of those obstacles and thereby to the achievement of a common market in services, thus enabling operators established in one Member State to offer their services in other Member States and Community consumers to benefit from comparable conditions when buying a package in any Member State;
…
Whereas disparities in the rules protecting consumers in different Member States are a disincentive to consumers in one Member State from buying packages in another Member State;
Whereas this disincentive is particularly effective in deterring consumers from buying packages outside their own Member State, and more effective than it would be in relation to the acquisition of other services, having regard to the special nature of the services supplied in a package which generally involve the expenditure of substantial amounts of money in advance and the supply of services in a State other than that in which the consumer is resident;
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;
…
Whereas if, after the customer has departed, there occurs a significant failure of performance of the services for which he has contracted or the organizer perceives that he will be unable to procure a significant part of the services to be provided; the organizer should have certain obligations towards the consumer;
…
Whereas both the consumer and the package travel industry would benefit if organizers and/or retailers were placed under an obligation to provide sufficient evidence of security in the event of insolvency;"
Whilst consumer protection is plainly not the primary object of the Directive, save insofar as that can be equated with the achievement of a common market, it can I think at the least be said that one purpose is to render it straightforward for a consumer to effect recovery from a single domestic source in the event that he has bought a package which involves the supply of services in a state other than that in which he is resident and when there is some failure properly to perform.
The parties agreed that there should be a preliminary hearing "to resolve the issue as to whether the claim arises from a package holiday and whether the Defendant was a party to the holiday contract". Judge...
To continue reading
Request your trial
-
Regulated Travel Arrangements
...While the legislative context of the decisions in ABTA and Titshall was different, there is no 87 Titshall v Qwerty Travel Limited [2011] EWCA Civ 1569, [2012] 2 All ER 267. 88 ABTA v CAA [2006] EWCA Civ 1356, [2007] 2 Lloyd’s Rep 249. 89 ABTA v CAA (above) at [25]–[26] per Chadwick LJ. 50 ......
-
Table of Cases
...Telecommunications Plc [2008] EWHC 3129 (QB), [2008] All ER (D) 169 (Dec), [2008] 12 WLUK 454 12.53 Titshall v Qwerty Travel Limited [2011] EWCA Civ 1569, [2012] 2 All ER 267, [2012] 2 All ER (Comm) 347, [2011] CTLC 219, [2011] All ER (D) 107 (Dec) 1.120, 1.121 Tomlinson v Congleton Borough......