The Dekagram 28th November 2022

• Published date: 29 November 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Consumer Credit, Personal Injury, Professional Negligence, Dodd-Frank, Consumer Protection Act
• Law Firm: Deka Chambers
• Author: Mr Stephen Glynn, Bernard Pressman and Francesca Kolar

Following the collapse of Thomas Cook we brought a number of claims under s.75 of the Consumer Credit Act 1974 against credit card suppliers in relation to the tour operator's alleged breach of contract. All very satisfactory, and a neat way of recovering damages where a potential Defendant does not have funds to satisfy any judgment or settlement. But what was the position, we often mused, where the Claimant was not the cardholder, but merely a member of the holiday party in respect of whom the booking had been made? Where (for example) a parent booked a holiday on behalf of his or her family, and one of the children was injured as a result of the negligence of a supplier, it seemed an odd result if the cardholder who made the booking could recover for his or her diminution in value, even a secondary victim claim for psychiatric damage, but the primary victim could not. And yet the wording of the Act is clear; in order to make a claim under s.75 the Claimant must be the debtor, and nothing else is good enough. We now know the answer to this conundrum; the Court of Appeal, in Cooper v Freedom Travel Group [2022] EWCA Civ 1557, has decided that the clear wording of the Act has primacy, and in such circumstances the Claimant must indeed be the credit card holder. Another Travel Law Mystery solved.

Are Consumers still getting duped by airlines?

Investigations by Which? Travel in summer 2022 and by the Hungarian Competition Authority in October 2022 reveals how some airlines bend, ignore and potentially break the law.

In October 2022, the Hungarian Competition Authority ("GVH") concluded a set of checks on websites associated with the air travel sector to identify breaches of consumer protection law. The GVH found that the majority of the websites of airlines operating in Hungary (including low-cost airlines) and ticket price comparison websites distort consumers' choices through undetectable methods. The GVH provided recommendations to the operators of these websites and to consumers to comply with consumer protection regulations. Depressingly the GVH findings seem to be on a par with the findings by Which? that major airlines could be breaching passenger rights.

Which? looked at seven major airlines' Terms & Conditions and found some making misleading claims about compensation or charging unreasonable fees. One airline, Tui, implied that it could choose to simply refund passengers instead of rerouting them. In fact, under Regulation (EC) 261/2004 - the Denied Boarding Regulation - when a flight is cancelled the passenger decides whether they want to be rerouted or refunded. Furthermore, the investigation revealed that some carriers, including Ryanair, even have terms that allow passengers who have attempted to claw back money from airlines via a chargeback on their credit card, to be put on a blacklist. Ryanair in response to the blacklisting allegation claims that fewer than 850 passengers had unlawfully processed chargebacks via their credit card.

Summer 2022 saw passengers facing travel chaos, with large scale cancellations from British Airways and EasyJet. Some other airlines struggled to cope with staff shortages as the travel industry recovers from the impacts of COVID-19 and Brexit. Consequently, British Airways was reported to the Civil Aviation Authority (CAA) earlier this year for failing to inform customers of their right to compensation or to reroute them when their flight was cancelled or disrupted. British Airways was criticised by Which? for having misleading terms including that it will compensate passengers in some circumstances if it 'delays a flight by five hours or more' but under the Denied Boarding Regulation passengers are entitled to up to '520 in compensation after delays of over three hours, not five.

Most of the airlines looked at by...