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Articles | Mon 28th Sep, 2020
Busy practitioners could be forgiven for missing the latest amendment to the Fatal Accidents Act 1976, s.1A of which will now enable cohabitees to claim for statutory bereavement under s.1A(3). The amendment, which has been a long time coming, will finally be ushered in on 6th October by the Fatal Accidents Act 1976 (Remedial) Order 2020. It will not be retrospective, and therefore does not apply to deaths occurring prior to that date. It does, however, cover cohabiting partners in same sex relationships. The amount of the bereavement award under the Act, £15,120, remains paltry in comparison with awards made in some other European legal systems, and inevitably practitioners acting for Claimants continue to call for further amendment to increase it significantly, but we detect no particular sign that the government is considering doing so at present.
This week’s edition of the Weekly Roundup is brought to you by Duran Duran. Don’t blame us, blame BLM. They insisted.
Is There Something I Should Know? about the relaunch of Thomas Cook and its commitment to refunds
It has come as something of a surprise that only a year on from its dramatic collapse, Thomas Cook has risen from the ashes and recently relaunched itself as an online travel agent. The new Thomas Cook has made itself ‘Covid-ready’ by selling holidays to quarantine-free destinations on the UK Government’s ever-changing travel corridor list, such as Greece and Cyprus. For those destinations taken off of the list prior to travel, customers can move their package holiday to a new destination or date for free.
Whilst Thomas Cook states on its website that customers can ‘book with confidence’, recent reports indicate that they have in fact failed to commit to providing refunds within 14 days. As regulations 13 and 14 of the Package Travel and Linked Travel Arrangements Regulations 2018 (‘the Regulations’) make plain, a full refund must be provided to customers within 14 days where the organiser cancels the holiday because of ‘unavoidable and extraordinary circumstances’. Despite this, Thomas Cook has allegedly confirmed that it only intends to aim for refunds to be provided within 14 days, as it ‘cannot guarantee’ refunds in that timeframe where there are large numbers of cancellations. With the company apparently distancing itself from its legal obligations, customers could, in theory, be waiting weeks or months for a refund.
This is plainly a risky strategy. Consumer confidence in the company is undoubtedly dented from its collapse earlier in the year, particularly as many customers were stranded abroad in the wake of its demise. In addition, whilst Covid-19 infection rates soar around the globe, many customers are reluctant to travel, and risk being locked down in another country. With that in mind, and the knowledge that Thomas Cook may not honour its obligations in respect of providing refunds, how can customers book with confidence?
There can be no doubt that some customers will be deterred from booking with Thomas Cook in the light of those recent reports. Clearly, if other major travel agents are complying with their obligations under the Regulations, travelers will likely book elsewhere. The key to Thomas Cook’s relaunch success will largely lie in its treatment of its customers and that will be partially evidenced by its commitment to complying with the Regulations. Without affirming its commitment to providing refunds within 14 days, the relaunch of Thomas Cook may not be as successful as it hopes.
About the Author
Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.
Save A Prayer for Airbnb
It is a trite observation that the ‘sharing economy’ and its many disciples have significantly altered the environment in which modern businesses operate. For us travel lawyers, one disciple of particular note is Airbnb. Although in one sense Airbnb has been a boon for those seeking low-cost non-traditional holiday accommodation, the communities in which Airbnb operates sometimes see things differently – and so too do local policymakers.
The Court of Justice of the European Union has dutifully attempted to regulate Airbnb since the day it first burst onto the scene. But a number of commentators consider that it has failed to do so properly, and that the legal framework for doing so is out of date. The most significant iteration of the regulatory battle occurred in December 2019 in the case of Airbnb Ireland (Case C-390/18). There, the CJEU held that Airbnb was by its nature an online platform, not a real estate company, and that it was therefore not subject to (for example) local housing laws. The decision was a clear victory for Airbnb.
The battle recently continued by proxy with the CJEU’s decision in the joined cases of Cali Apartments (Case C-724/18 and C-727/18). In Cali Apartments two property owners in Paris (the “Claimants”) sub-let their apartments on a short-term basis via Airbnb without prior authorisation from the local authorities. Under the applicable French legal code, short-term lets were only permitted if a number of preconditions were satisfied, with one of those preconditions being prior authorisation by the relevant municipality (the “French authorisation scheme”). The Claimants had clearly breached those provisions and were subsequently fined in accordance with French law. Displeased, the Claimants fought back on the grounds that the aforementioned French law requirements were contrary to Directive 2006/123/EC (“Services Directive”). The French court referred the issue to the CJEU.
AG Bobek gave the lead judgment. It was held, firstly, that the Services Directive applied to the renting of accommodation and the French authorisation scheme – the renting of accommodation, like any other service in the field of tourism, was intended to fall within the scope of the directive and none of the exemptions set out in Article 2(2) and (3) applied: [41-42]. It was in other words clear that the French authorisation scheme fell within Articles 9 to 13 of the Services Directive (provisions relating to authorisation schemes): [71-72]. AG Bobek then moved to the question of whether the French authorisation scheme was compatible with the Services Directive. AG Bobek found that the French authorisation scheme could be justified on a public interest basis (as required under Article 9(1)(b)) in that it sought to address a shortage in long-term housing by regulating the extent to which landlords could buy properties for the purpose of letting them on a short-term basis to tourists: [97, 102]. Alternative means by which that could be achieved were considered pursuant to the proportionality provision under Article 9(1)(c), but it was held that the French authorisation scheme was not disproportionate per se: [119-120]. Accordingly, it was concluded that national provisions that require landlords to obtain authorisation prior to repeated short-term letting of residential property were compliant with the Services Directive, provided of course that the relevant authorisation provisions were compliant with Article 10(2): .
So how does this affect the British holiday maker? Well, the decision in Cali Apartments can be construed as a green light for those local policymakers who are or were considering similar authorisation schemes to those in play in France. If such authorisation schemes become common place across the EU, it may be that Airbnb offerings become less extensive as more landlords are made subject to those national lettings regulations. But, I hear you cry, what about that art nouveau apartment we were thinking of renting in Barcelona?! Well, there is still hope yet – it seems unlikely that stricter lettings authorisation schemes will stymy Airbnb’s increasing dominance of the holiday accommodation market any time soon.
About the Author
Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas.
Will Easyjet Come Undone?
Readers will know that we at 1CL don’t listen to gossip, but we were alarmed to hear that a British Airline Pilots’ Association union rep considers Easyjet to be ‘hanging by a thread’. Apparently he thinks that the ‘situation is dire’. In the last few weeks sixty pilots have left the airline voluntarily, and 75% of the remaining pilots have agreed to work part time, in an effort to avoid compulsory redundancies. The airline denies that it is in any worse position than any other carrier, and points out that this is hardly a bumper time of year for airlines in any event; but the rep’s gloomy prognostications reflect wider concerns about the viability of airlines more generally, particularly when set against the backdrop of recent high profile industry failures (was it really only this time three years ago that Monarch Airlines collapsed? and a year ago last week that Thomas Cook ceased trading? Both before Covid-19 was even a twinkle in a pangolin’s eye).
The ongoing uncertainty around which countries are on the government’s list of travel corridors at any given time, and the short-notice announcements over changes in quarantine rules, as well as the ongoing Great Refund Saga, have combined to annihilate consumer confidence in the travel industry, despite the best efforts of ABTA and others to provide reassurance. Indeed, Easyjet Holidays have confirmed that if short-notice quarantine alterations are imposed, they will cancel holidays and provide a refund. Their website features the warranty:
“Even where the FCDO advice permits travel, if at the point of departure there is a known requirement for routine quarantine or self-isolation either on arrival or when landing back home under UK governmental entry requirements guidance for your booked holiday destination, our standard response is that we’ll cancel your holiday…If it looks like you might be impacted by new government regulations, we’ll get in touch as soon as possible.”
These commitments go beyond what is legally required by the Package Travel and Linked Travel Arrangements 2018 and are clearly designed to reassure holidaymakers that they are safe in booking holidays with the tour operator. It would indeed be a shame if these reassurances were to backfire, or if the carrier should find itself in difficulties now, having come through the first chapter of the Great Refund Saga relatively unscathed.
And that’s before we even consider the consequences for the airline of the data breach affecting nine million passengers discovered in January this year, the reputational and financial consequences of which could be mind-boggling.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.
We sometimes wonder whether lawyers aren’t their own worst enemies. It was very much in this spirit that we read of the Australian criminal barrister who has just struck a blow for the freedom of lawyers everywhere to drive around in cars proclaiming them to be utterly crass. The chap in question was taken to task by local transport authorities in New South Wales over the personalised numberplate of his yellow Lamborghini, which reads LGOPNR (denoting ‘leg opener’, since you ask). Transport for NSW argued that the numberplate was offensive, but the lawyer succeeded in his counter-argument that innocent bystanders would not be offended by it, since they would not realise the meaning of the consonants on the plate. As he himself says, in terms worthy of Denning MR at his most lyrical:
“How can anyone be offended by something if they don’t know what the f*** it means?”
We can assure readers that no one tuning in to this week’s 1CL Thursday Webinar will be offended by language of that nature; Sarah Prager and Henk Soede will be keeping their analysis of the provisions of the Montreal Convention strictly PG rated. They don’t want to become Notorious in the legalsphere.