Search
You are here: Dispensing Doctor Journal Archive » Volume 20.4 Oct 2004 » Legal Matters - Don't forget your legal textbook
Legal Matters - Don't forget your legal textbook
Volume 21.4
Oct 2005
Travellers' (legal) tales
Did you have a good holiday? Or perhaps you're still planning a late sun or winter break. Whenever you travel, watch out for potential legal pitfalls, cautions Roger Sceats - before, during, and after the event
If the car doesn't come in the next five minutes, we won't get to the airport on time. We will miss the plane - and the holiday we have been planning for years will be completely spoilt.
When you made the booking, did you tell the car-hire company how important it was for them to get you there at a certain time? Did you tell them what the consequences would be if they failed to do so? Damages in the law of contract have to be based on the knowledge of the parties or what they reasonably should have known. This principle was established at least 150 years ago in the case of Hadley v Baxendale, when a carrier failing to bring machinery promptly hadn't been told that the mill he was supplying would be losing money without delivery on the promised day.
We got to the airport by the skin of our teeth, and had the holiday of a lifetime. But when we came to go home, we reached the local airport to be told the airline had gone into liquidation. We were thousands of miles from home and had to pay again to fly with someone else. What can we do about this?
This is a complex situation of current law. Did you get the ticket through the internet? When you sometimes have the choice whether to pay by debit or credit card? You can go badly wrong here if you tick the wrong box. The Consumer Credit Act provides extensive protection for consumers using credit cards, and will cover foreign transactions too, although there is still some doubt about the smallest ones.
But it will not cover debit or charge cards, seen as the equivalent of cash. It also seems that if you made an immediate payment to an IATA travel agent you get no cover, whereas if you have an ATOL receipt, the Civil Aviation Agency will pick up the costs of repatriation. Perhaps you bought the ticket in a holiday package from a tour operator? In that case you are OK as the Package Travel and Holiday Regulations apply.
The flight back was fine, but they lost all the luggage. That really was the last straw, especially as there were items of real sentimental value that have never been recovered.
The best advice is to look at the terms of your holiday insurance, almost certainly more generous than any claim against the airline. Airline liability used to be severely limited by international law - the Warsaw Convention of the 1920s - to a niggardly value per kilogram lost. Although matters have recently been updated by the Montreal Convention (to the benefit of passenger rights generally on scheduled flights) insurance is usually going to be a far easier way to proceed. The holiday insurers may in turn wish to recover from the airline what they can, but that will be up to them. But I am afraid no normal insurance policies will let you have more than market value for the items lost.
Flying was too stressful. Next time we are going to take a cruise: drive down to Dover, and get on a cruise ship. One could always slip on a wet deck, I suppose, but at least should anything go wrong we will know whom to claim against.
Don't delay with any claim. The limitation period - the time during which a maritime claim can legally be made - is different and substantially shorter than for a claim on land. It's also possible that the company will be overseas and the ship registered under a 'flag of convenience'. That could be interesting for the lawyers. As usual, holiday insurance is going to be a lot more practical.
So perhaps a holiday in the USA would be best? After all, the consumer there is king, and lawyers lounge around on the street corners longing to act on a contingency basis for any sort of complaint?
Sounds appealing, but there are swings and roundabouts. Be careful, for example, if you like to go gambling and have an accident on premises. It sounds ridiculous, but a man who received an electric shock working a one-armed bandit - whom you would have thought had an open and shut case - found there was no possibility of compensation. Some gambling premises are sited on Indian reservation land where neither federal nor state law applies. Apparently, in this case the complexities of bringing the claim far outweighed any pursuit of it. The chap had to console himself with the useful aversion therapy he had fortuitously received against gambling. Don't forget, too, that because American lawyers take a percentage of the damages for their income, it may not be at all easy to find one to deal with a relatively small claim.
OK, if we take a villa, say in Spain, but the developers are pile-driving nearby, that at least should be an easy thing to remedy?
Generally with this sort of complaint the Holiday Package Regulations do work. Indeed a holiday case some years ago pioneered in English law the concept of a claim for intangible loss - when the essence of the contract was to provide a decent holiday. At one point the courts were being very hard on the holiday companies and many, perhaps slightly dubious, claims succeeded. The courts have recently re-emphasised that the customer must still prove fault. Was the noise something the holiday company here should have known about?
We have decided not to go back to our house in Spain for a year or so. Luckily we have found (English) friends to rent it to. We can't have any problems doing that, can we?
This is not a question any English lawyer should answer. You must take advice in Spain. Under international convention law for anything more than a holiday letting, only the local law will apply. If you had to take proceedings against tenants, you would have to do this in the Spanish courts. They are not famous for their speed.
We have bought a caravan for our holidays. It will be doubly economical because when we get tired of using it, we will let it out.
The law here can be a by-way where you can be stranded. While usually tenants don't enjoy protection, the European Court of Human Rights recently had to get to grips with the Caravan Sites Act 1968. There used to be a summary eviction process used (for example) by local authorities against gypsies, but not any more. Without due process - something more full and court-like than we have at the moment in parts of that Act - there is a breach of Article 8, which provides protection for private and family life. Best to take legal advice on all letting matters, of course.
It's all so appallingly complicated, we are not going to go anywhere. We will stay at home.
That's where most accidents occur, of course.
Roger Sceats is a solicitor primarily concerned with the Pharmaceutical Regulations but also practises in other areas of law. Any opinions are the author's and not to be attributed to the DDA. Readers are invited to suggest for subsequent issues subjects or problems, in any area of law. Please e-mail any items to: mail@DRSceats-Solicitor.co.uk