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TATLA
TRAVEL AND TOURISM
LAWYERS’ ASSOCIATION
Sponsored by:
President: The Hon. Mr.
1 Chancery Lane
Justice Silber
London Wc2A 1LF Travel Law Team
Vice-President: HHJ Alan
Saggerson 0845 634 6666
www.1chancerylane.com Matthew Chapman
Committee Sophie Mortimer
Sarah Prager
Matthew Chapman Ian Miller
(Chairman) Simon Trigger
Sarah Prager Ben Hicks
Michael Imperato Laura Johnson
Lee Hills Andrew Spencer
Matthew Davies Jack Harding
Carmen Calvo-Couto Lisa Dobie
Demetrius Danas Roderick Abbott
Nolan Mortimer Rebecca Grant
Jack Harding Frances McClenaghan
Michael Gwilliam Thomas Crockett
Stephen Mason
Mark Fanning (Co-opted)
Nish Kanwar (Co-opted)
NEWSLETTER – January 2011
NEWS:
TATLA Annual Lecture 2011 – 7 February 2011 – 6:30pm
th
A reminder: The now-traditional annual round-up, followed by a drinks reception.
Webb Johnson Hall, Royal College of Surgeons, 35-43 Lincolns Inn Field, London WC2A 3PE.
Advance booking not necessary. Free to members and guests, but please give an indication of
intention to attend to jfensham@1chancerylane.com (tel: 0845 634 6666) to assist with catering.
1 Hour CPD available
TATLA Committee Election 2011: 12 places available to paid-up members (additional
members can be co-opted). Nomination paper at the foot of this document. An election will take
place in the event that there are more nominees than places.
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CIVIL AVIATION AUTHORITY v different suppliers. The holder of the Air
TRAVEL REPUBLIC LTD (2010) Travel Organisers Licence (the ATOL)
“must provide all the relevant services in a
[2010] EWHC 1151 (Admin) single contract and is accordingly liable for
Travel Republic Limited, the Defendant any failing with respect to any of the
and then Respondent to the action brought services provided.” (per Elias LJ at
by the CAA, is a well known travel agent paragraph 11 of judgment). In its
incorporated in the United Kingdom. It prosecution of Travel Republic the CAA
does not publish a paper brochure; instead, laid 20 Informations which itemised
it offers services by means of a website breaches of regulation 3(1A) and, therefore,
and a telephone line. As Elias LJ observed the commission of criminal offences. The
(paragraphs 20 and 21 of judgment): prosecution was based on the premise that
“Typically, it will be accessed on the Travel Republic was selling package
internet either directly through its own holidays: “the customer is simply putting
website or by following up links on a together a combination made available by
major search engine such as Google. Once the agent; to all intents and purposes the
on the website, a customer is offered a parties are agreeing a package by the time
choice of flights, hotels and apartments, of sale.” (per Elias LJ at paragraph 24 of
car hire and other related services. Some judgment). In other words, Travel Republic
web links specifically refer to what are was doing just what the European Court
described as ‘tailor made holidays’. The envisaged in Garrido [2002] ECR 1-4051:
various components which make up a selling a package holiday proposed by the
holiday are ostensibly all sold separately consumer and tailored to the consumer’s
but they can be linked together by a requirement. The fact that the initiative for
customer to provide all the necessary the purchase of this holiday came from the
elements of a holiday, and indeed the consumer did not mean that a package
system consciously facilitates their ability holiday was not being sold.
to do this. The total cost of the combined
services will be the same as the aggregate The case was tried by a District Judge in the
cost of each component priced separately. City of Westminster Magistrates’ Court.
In other words there is no price discount Travel Republic was acquitted. There was
for booking more than one element of the an appeal by way of case stated to the
holiday.” Administrative Court (as an alternative to
appeal by way of judicial review). Both
A similar process is followed with respect parties relied heavily on the judgment of the
to bookings made by telephone with Court of Appeal in the ABTA Litigation and
Travel Republic Limited’s agent making the Administrative Court stated that it
use of a script emphasising that the regarded itself as bound by the reasoning of
company acts only as agent, that holiday the Court of Appeal in that case.
components are provided separately and
that Travel Republic does not sell
regulated packages. The CAA’s The ABTA Litigation: a recap
prosecution of Travel Republic was based The following passage of Chadwick LJ’s
on regulations 3(1A) and 15 of the Civil judgment in the Court of Appeal was the
Aviation (Air Travel Organisers’ subject of discussion in the Administrative
Licensing) Regulations 1995. The Court:
combined effect of these provisions is that “Now suppose that the agent has informed
a criminal offence is committed where the customer that the cost of flights will be
different elements of the package holiday £X, the cost of accommodation will be £Y
are provided under different contracts with and the cost of transfers will be £Z; and has
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explained to the customer that he can travel facilities including a flight". As I have
purchase any one or more of those explained, an offer to sell two or more
services, as he chooses, without any need separate travel services at the same time
to purchase the others. He has explained, does not necessarily lead to the conclusion
in effect, that the customer can choose to that the services are being sold or offered
purchase the other services elsewhere; or for sale as components in a pre−arranged
to make other arrangements. In that case combination and at an inclusive price; but,
as it seems to me there would be little on the facts of the particular case, it may do
doubt that the services are not offered for so. … If the customer approaches an agent
sale as a pre−arranged combination and "to buy a holiday", it is likely that what will
at an inclusive price.” (per Chadwick LJ be sold or offered for sale will be a
at paragraph 28 of judgment). pre−arranged combination of services at an
inclusive price: that is to say, "a package".
This was, in essence, precisely what If the customer wants to buy "a flight and
Travel Republic said it was doing when it accommodation and/or other services", then
sold holiday components to consumers. As (as I have explained) it will not necessarily
Elias LJ observed in the course of his follow that the services sold or offered for
judgment in the Administrative Court, sale will be sold or offered as a package:
Chadwick LJ qualified this rather bold but they may be.”
assertion by stating as follows in a later
passage of his judgment (dealing with Notwithstanding the importance apparently
Garrido-type cases where the initiative for attached to the views and intentions of the
the holiday comes from the consumer): consumer at the time of purchase, Chadwick
“Returning to the second of the examples LJ also pointed out in the course of his
which I have set out, difficult questions of judgment in the ABTA Litigation that the
fact are likely to arise if the customer test was not subjective; the fact that the
chooses and contracts for two or more of consumer thought he was purchasing a
the services on the same occasion. The package was not determinative, although it
principle is not in doubt. If the services are “may be a powerful evidential pointer to the
sold or offered for sale as components of a true nature of the transaction.”
combination, there is a package: if they
are sold or offered for sale separately but
at the same time, there is no package. The Conclusions of the Administrative Court
question whether they are sold as The decision of the Administrative Court in
components of a combination − or CAA v Travel Republic is best regarded as a
separately but at the same time − is a modest and fact-sensitive extension to the
question of fact. That question may not be reasoning of the Court of Appeal in the
easy to resolve in the particular case.” ABTA Litigation, rather than as new law.
(per Chadwick LJ at paragraph 31 of Certainly, this conservative reading of the
judgment). judgment would appear to be consistent with
what the Administrative Court was seeking
The following passage of Chadwick LJ’s to do: “The solution to this case involves
judgment was also the subject of close applying the principles adopted in the ABTA
scrutiny by the Administrative Court: case to the facts.” (per Elias LJ at paragraph
“The fact that the agent has selected the 48 of judgment).
travel components is likely to point to the The basis for the Administrative Court’s
conclusion that the components are dismissal of the appeal by the CAA can be
offered for sale as a pre−arranged found in the following passage from the
combination. The position may be less judgment of Elias LJ (at paragraphs 49 –
clear where the agent has "offered for sale 50):
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“… the regulation will almost certainly the customer chooses his or her own
bite in a case where the customer combination of services from a wide range
specifically tells the agent that he wishes of options, in circumstances where TRL does
to buy a holiday and the component not know whether a customer will select
services are either offered or suggested to only a single service or a combination”. It
him as part of a proposed single holiday appears to be the case that the particular
package. The combination is then put fact-sensitivities of the individual
together by the agent for the customer. transaction (including, where appropriate,
Whilst that may well have happened on the evidential assistance available from the
occasions with this agent, particularly subjective intentions of the parties) will be
where holidays were booked by telephone, used to distinguish these two categories of
that is not the typical situation which we case. It may be that the contortions of the
are required to address in this test case. … English courts in recent years in respect of
Essentially we are dealing with a situation these issues signals the pressing need for
where the customer chooses his or her legislative reform and this was clearly
own combination of services from a wide anticipated by Elias LJ at the conclusion of
range of options, in circumstances where his judgment (refusing a reference to the
TRL does not know whether a customer European Court of Justice):
will select only a single service or a “… the European Commission has finished
combination. The customer is putting consultations on a possible redrafting of the
together his own combination for himself. Directive to take account of selling patterns
Of course, TRL will wish to sell as many of this kind, and so has the Department for
services as it can, and it will know that the Transport with respect to changing the
majority − and perhaps an overwhelming Regulations. Given that the purpose of these
majority − of its customers are seeking to proceedings is to provide a test case to
combine the services to make a holiday. determine the current state of the law, that
Their website recognises that fact when it objective may well be undermined by a
advertises that holiday packages are reference [to the ECJ] at this stage.”
available. But, in my judgment, that does
not necessarily mean that they are selling
the services or otherwise making them
available at the point of sale as component
elements of a pre−arranged combination.”
Unsurprisingly, the Administrative Court
did not believe that the decision reached
by the District Judge had no evidential Members may be interested to note
foundation or was otherwise perverse. that two members of 1 Chancery Lane
Indeed, Elias LJ felt that the District recently fought over the issues raised
Judge’s decision properly reflected the by CAA v Travel Republic in the
reasoning of the Court of Appeal in the Canterbury County Court (judgment
ABTA Litigation. It must, however, awaited – to be the subject of a future
remain open to question whether any case note)…
meaningful distinction can be drawn
between Garrido-type cases “where the
customer specifically tells the agent that
he wishes to buy a holiday and the
component services are either offered or
suggested to him as part of a proposed
single holiday package” and those “where
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TATLA COMMITTEE ELECTION
2011 NOMINATION FORM
Name of TATLA member:
Firm/Chambers address/tel. no.:
Proposed by (The insertion of a proposer
for nomination is optional):
Please return completed nomination paper to:
Jack Harding
1 Chancery Lane
London WC2A 1LF
DX LDE 364
Tel 0845 634 6666
jharding@1chancerylane.co.uk
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