HOLIDAY LAW. University of Northumbria

Transcription

1 HOLIDAY LAW By PROFESSOR DAVID GRANT, University of Northumbria & STEPHEN MASON M.A., (CANTAB.), Partner in Stephen Mason, Solicitors, Visiting Fellow, University of Northumbria, Holder of Higher Courts (Civil Proceedings) Qualification LONDON SWEET & MAXWELL 2003

2 Contents Preface Foreword Acknowledgements Table of Cases Table of Statutes Table of Statutory Instruments Table of Treaties Table of European Legislation v vii ix xvii xxix xxxi xxxv xxxvii CHAPTER ONE: Introduction 1 The Scheine of the Book The Package Travel Industry 1 2 The English Legal System 14 CHAPTER TWO: The Package Travel Regulations 31 Introduction 31 Scope of the Regulations An Overview CHAPTER THREE: Offer and Acceptance: Do We Have A Contract? 71 Introduction 71 CHAPTER FOUR: Contents of the Contract 100 Introduction and Overview 100 Distinguishing Terms from Other Statements 104 Distinguishing Between Representations and Puffs 107 Conditions, Warranties and Innominate Terms 111 Express and Implied Terms 115

3 Introduction 261 When is a Contract Frustrated? 262 The Consequences of Frustration The Common Law 272 CONTENTS Regulation Regulation Surcharges 130 CHAPTER FIVE: Liability 135 Introduction 135 Regulation Regulation CHAPTER SIX: Exclusion of Liability and Unfair Contract Terms 176 Introduction 176 The Commmon Law 178 The Unfair Contract Terms Act The Package Travel Regulations 211 The Unfair Terms in Consumer Contracts Regulations 219 CHAPTER SEVEN: Misrepresentation 232 Introduction 232 Types of Misrepresentation Remedies for Misrepresentation CHAPTER EIGHT: Privity of Contract 246 Introduction 246 Privity of Contract The General Rule 247 Privity of Contract The Impact on Package Holidays Privity of Contract The Impact of the Regulations Privity of Contract and Transferees 254 The Contracts (Rights of Third Parties) Act CHAPTER NINE: Frustration of Contract and Force Majeure 261

4 CONTENTS The Consequences of Frustration The Law Reform (Frustrated Contracts) Act The Package Travel Regulations 279 The ABTA Code of Conduct 285 CHAPTER TEN: Remedies 291 Introduction Damages Cancellation by the Client 313 Remedies Under Regulation Remedies Under Regulation Rectification 340 CHAPTER ELEVEN: The Trade Descriptions Act Introduction 342 The Trade Descriptions Act 343 CHAPTER TWELVE: The Consumer Protection Act Introduction 369 The Relevant Provisions Requirements of the Offence CHAPTER THIRTEEN: Criminal Offences Under the Package Travel Regulations 392 Introduction 392 Brochures Regulation Pre-Contract Regulation In Good Time Before Departure Regulation Comparison of TDA and the Regulations 408 CHAPTER FOURTEEN: Defences 409 Introduction 409 The Trade Descriptions Act 409 The Consumer Protection Act 410 The Regulations 410

5 CONTENTS In General 411 All Reasonable Steps? 415 The CPA Code of Practice 417 Are Errata Effective? 419 A Due Diligence System 423 The Position of the Employees 424 Procedure 425 Enforcement Orders 426 CHAPTER FIFTEEN: Travel Agents 430 Introduction Liability as an Organiser Liability as an Agent 433 Who Can Sue for Breach of Contract, and When? An Alternative View Liability in Negligence 441 Common Problems in Practice Travel Agent and Tour Operator CHAPTER SIXTEEN: Insolvency and Security 450 Stabiliser 452 The Rules Under the Package Travel Regulations 452 Offences 458 CHAPTER SEVENTEEN: Practical Litigation 460 Court or Arbitration? The Road to Court Preparing for Trial Additional Points Practical Tips to Help You Win Your Case 468 CHAPTER EIGHTEEN: Air and Sea Travel 474 Introduction 474 The Warsaw System 475 The EU Regulation on Air Carrier Liability in the Event of Accidents 504 Denied Boarding Compensation 507

6 CONTENTS Carriage by Sea 512 CHAPTER NINETEEN: Accidents Abroad 516 Jurisdiction 516 If Overseas Proceedings are Necessary 522 APPENDIX ONE: Council Directive on Package Travel, Package Holidays and Package Tours 524 APPENDIX TWO: The Package Travel, Package Holidays and Package Tours Regulations APPENDIX THREE: Code of Conduct of The Association of British Travel Agents 558 Bibliography 594 Index 597