The Dekagram: 16th September 2024

This week the team turns its attention to flying for leisure, and in particular the Regulation 12 right to a refund – and, perhaps more esoterically, whether such flights can ever be justified at all. We do hope so, because we will be flying to Prague this week for the PEOPIL annual conference, sponsored by Deka Chambers, and attended by some of our most cherished friends and colleagues. We might pretend that it’s a work trip for Sarah Prager, Dominique Smith and Anirudh Mandagere, there with the incomparable David Barrow, but let’s be honest – it’s going to be two days of enjoyment for all concerned. We hope to see our readers there.

Unavoidable and Extraordinary Circumstances: Regulation 12(7) of the Package Travel Regulations

Since the new package travel regulations came into force, there has been quite a lot of debate about the traveller’s right to cancel and receive a full refund under Regulation 12(7). This regulation permits the traveller to cancel (with a full refund) where there are “unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect (a) the performance of the package, or (b) the carriage of passengers to the destination”. 

This is different to the provisions for cancellation with a full refund in the 1992 Regulations. Regulation 12 of the 1992 Regulations applied when the organiser was “constrained”, before departure, to alter significantly an essential term of the contract. In Lambert v Travelsphere (Unreported 1st September 2004) this was interpreted by HHJ Darroch as meaning that, so long as there was a “flicker of hope” that the package could be undertaken, there was no right to cancel without penalty, and a traveller who cancelled whilst there was a “flicker of hope” was jumping the gun and would not be entitled to a full refund. The “flicker of hope” test was applied in a number of cases, before being doubted by the High Court in Sherman v Reader Offers Limited [2023] EWHC 524 (KB) and also by the Court of Appeal [2024] EWCA Civ 412.

Defendants have sought to import the “flicker of hope” test into Regulation 12(7) of the 2018 Regulations. In Team4 Travel v St John Fisher School (Unreported 14th June 2024) the Defendant argued that as “unavoidable” meant “impossible to avoid”, if the outcome could still be avoided, it was not impossible to avoid and that the “flicker of hope” test should apply.

The judge (HHJ Beech) rejected this,  noting that the traveller must inevitably look to the future when deciding whether to cancel and that there was nothing in Regulation 12(7) to limit the right to cancel without penalty to a very short window before departure. The word “constrained” did not feature in Regulation 12(7), and the Regulation had no specific limit as to the timing of the decision. Limiting Regulation 12(7) in this way would equate it with the trader’s obligation under Regulation 11 and effectively make Regulation 12(7) redundant (as the trader would have to cancel anyway in such circumstances). Instead, the test applied by HHJ Beech was the time when “a reasonably intelligent individual with common sense concludes that there is no reasonable prospect of the trip going ahead, or that if it does, it will be significantly different to that contemplated or contracted for”: so a test of “no reasonable prospect” rather than “no flicker of hope”.

A further issue is the requirement that the circumstances occur at the place of destination.

Part of the problem with covid-affected holiday cases was restrictions at the place of departure. The CJEU decided in UFC – Que Choisir and CLCV (Case C-407/21) that the provision was not limited to local events, but would include a global health crisis where the effects are also felt at the travel destination. In Team4 the judge considered that global travel restrictions at the point of departure along with the existence of the disease at the place of destination were sufficient to make this out. This was a slightly different approach to that taken by the judge in Brynmawr Foundation School v Holiday World (Unreported, 20th January 2022) where the judge held that there did not need to be a causal link between the cancelation and the circumstances in the destination. UFC – Que Choisir was not cited in Brynmawr so Brynmawr should not be taken as authority for the proposition that the UFC-Que Choisir approach is wrong.

The Directive on which the 2018 Regulations are based considers that “unavoidable and extraordinary circumstances” may cover “warfare, other serious security problems such as terrorism, significant risks to human health such as the outbreak of a serious disease at the travel destination, or natural disasters such as floods, earthquakes or weather conditions which make it impossible to travel safely to the destination as agreed in the package travel contract”. In any case, whether or events or circumstances are such as to make out the test will depend on the specific circumstances of the case, and the travel services agreed.

In terms of timing, this also will depend on the circumstances of the case, including the type of holiday and its length, the status of the travellers and the nature and severity of the unavoidable and extraordinary circumstances relied on. What is reasonable in terms of timing in one case may not be in another.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Sustainable Tourism: is Flying for Leisure ever Justified?

Last week I was intrigued to be asked to act as a judge in the trial of tourism itself. I was promised a gavel and the opportunity to condemn people to the cells for contempt of court, so of course I jumped at the chance. The trial turned into a judicial enquiry on the issue of whether flying for leisure can ever be justified; as regular readers would expect, I approached the challenge in an entirely open minded way, not letting my almost total ignorance of the issues get in the way of the opportunity to harangue the unfortunate witnesses, namely Paul Conroy of Byway, Dom Hughes of Inside Travel Group, Tessa Holmes of Sawdays, and Simon Heyes of Senderos.

The Environmental Argument

It seemed to me that the starting point should be the environmental issue: whatever your position on the continuum from the Lorax to his nemesis the Once-ler (sample quote: “let it die, let it die, let it shrivel up and die – who’s with me?”), there’s no denying that around 3% of global carbon emissions come from the aviation sector; it is calculated that the industry is responsible for around 5% of global warming. When you reflect, too, that only about 3% of the world’s population takes regular flights, it’s a small group of people causing quite a lot of environmental damage (on the assumption that one accepts that carbon emissions are A Bad Thing and that global climate change is both real and problematic – but let us accept those assumptions for the moment, since it’s surely better to be safe than sorry, and to assume that a thing we don’t have to do is problematic if there is some evidence that it could be, unless and until proven otherwise).

The issue is best illustrated with a couple of examples. A return flight from London to San Francisco emits around 5.5 tonnes of CO2 equivalent (CO2e) per person, more than twice the emissions produced by a family car in a year, and about half of the average carbon footprint of someone living in Britain. Even a return flight from London to Berlin emits around 0.6 tonnes of CO2e, three times the emissions saved from a year of recycling.

Initially it seemed to me that the environmental argument could be met by way of reference to emerging technology. Improvements in fuel efficiency, the use of sustainable fuel, and the development of electric aircraft are all interesting advances, but the consensus in the courtroom was that none has yet taken the quantum leap necessary to render flying an environmentally friendly or even neutral travel option. A realist might conclude that none is likely to do so within the next few decades.

I had wondered whether the witnesses would fall back on carbon offsetting, in which case I had prepared to counter their reply with the ripostes that:

1. Carbon offsetting an elite occupation. Offsetting flights for a four person family holiday in Antalya would cost over £300, a significant proportion of the cost of the holiday itself;
2. The most obvious problem with offsetting is that it encourages people to think that they can buy their way out of real environmental cost without enquiring as to where the funds they pay for this modern-day indulgence might be going. If, for example, the penance is spent on planting seedlings, it will take time for today’s carbon emissions to be offset by tomorrow’s plantations, whereas what is really needed is an instantaneous fix. Or a decision not to take the flight in the first place. Moreover, if you’re really concerned with the environment, why not simply make your £300 donation to offsetting, and then don’t fly, doubling your environmental money?

Disappointingly, however, the words ‘carbon offsetting’ passed no one’s lips but mine, and the only counter-argument to the environmental argument was an interesting one I had not foreseen.

I did not know until educated by an audience member that the digital industry is responsible for almost 4% of the world’s carbon emissions, similar to the percentage for which the aviation sector is responsible. Email, cloud storage, the web, they all consume energy, and they all come at a carbon cost. Over 50% of the world’s population uses the internet, and every time we do, we use a little bit of energy that releases a little bit of carbon into the atmosphere. And this sector’s carbon emissions are rising uncontrollably as the exciting new world of cryptocurrencies and artificial intelligence beckons us all.

Regular readers know that having watching Terminator at an impressionable age I have an unshakable belief that The Machines will kill us all – and here at last was proof positive, albeit admittedly not in the form I had anticipated. But still, it’s always nice to be right. And yet no one is proposing that we unplug the internet and ditch our phones. Why? Because we recognise that using the internet is a necessity – but computer networking was only invented in 1969; the human race seems to have managed just fine before that time, and presumably could again, if need be. So if digitalisation is not really a necessity, but is useful enough, and to enough people, to be seen as being necessary, might  flying for leisure be placed in the same category? What are the advantages to flying? Is there anything that can be put in the balance against its environmental impact so as to render it an acceptable pursuit?

The Environmental Argument #2

Here the witnesses and members of the audience really came into their own. There were numerous examples of international tourism actually increasing biodiversity and environmental enrichment. Had I had time I would have explored with greater thoroughness a reference to giant anteaters which I still suspect was artfully mentioned only to distract me from my laser-like focus on what good tourism might actually do in practical terms. And I also learnt that as well as giant anteaters, smaller, lesser anteaters also exist, although I understand that these are rather common, and therefore not the kind of anteaters our readers would mix with.

This argument seemed to me a powerful one. If one accepts – and surely everyone does – that biodiversity is A Good Thing, both because it’s nice to have lots of different animals running around the place, but also because it keeps the global ecosystem in balance in a way we haven’t begun to understand, and tampering with it feels like a Bad Idea with Unforeseeable Consequences; if, as I say, one accepts that, anything that helps preserve different habitats and their denizens must surely also be A Good Thing. And there is plenty of evidence, from Africa to South America, even to the Arctic, that international tourism, in supplying an alternative source of income locally to the usual corporate slash and burn otherwise available, has done more good than harm, if done responsibly and with an eye to sustainability.

Consider elephants, for a moment. I like elephants, but then, I don’t have to live alongside them. I understand that they are generally regarded by farmers local to them as something of a pest, the Indian and African version of rats, only larger and more prone to squashing irate landowners. The same, I am told, is true of jaguars, but with less squashing and more biting. Imagine the shift in our attitude to rats if people actually paid us to come and see them – not only that, but employed a sizable portion of the local community to service their visits in the form of hotels and restaurants and purveyors of keepsakes. And imagine if those tourists then went home and told all their friends of the wondrous joy one feels at seeing a rat – a real live rat! – close up and in the wild, sniffing around the bins round the back of chambers, and persuaded those friends to go and spend money doing the same.

I am of course in no way comparing the Deka recycling area to the Okavango Delta, to which it bears almost no resemblance at all. But you take the point. Tourism can help to preserve habitats and even species, and enrich local economies at the same time; as long as there is minimal financial leakage away from those economies.

The Cultural Argument

Another argument forcefully made in favour of international tourism was the cultural one. G.K. Chesterton thought that travel narrows the mind; Mark Twain, on the other hand, felt that it is fatal to prejudice, bigotry, and narrow-mindedness. Might international travel assist in bringing people together as we all realise how much we’ve got in common? Might tourists gain a new respect for the people of Egypt, for example, having gazed upon their pyramids? Or the Peruvians? Or Indonesians? (I am told that there are more than 5,000 pyramids dotted around the world. Perhaps they’re not so impressive, after all. We even have one in England constructed in c.2,400BC, which just shows you.) This argument, I am afraid, whilst initially attractive, was defeated by the simple observation that with the increase in international leisure travel does not appear to have come a demonstrable decrease in the incidence of war, bigotry or cultural misunderstanding.

There was also a brief discussion on whether visiting London’s glamorous Chinatown was or was not the same as visiting China itself. Tempting though it is to believe that the Chinese population is composed entirely of the grumpiest waiting staff known to humanity, as famously employed by the sadly now relocated Won Kei, the court concluded that there might be material differences between the two locations, and that therefore international travel might be culturally educational.

Other Forms of Transportation

But even if we accept that international tourism is A Good Thing, does this necessarily mean that flying is justified? Might tourists not travel abroad by way of other forms of transport, most notably by coaches and trains? A suggestion that ferries and cruise ships could be used as acceptable substitutes was met with general derision on the basis that these are even worse for the environment. Happily history does not recall whose stupid idea that was.

A spirited case was made for the use of trains as being ‘fun’ and ‘enjoyable’ and as incorporating the journey into the holiday itself. I believe that it is possible to travel from London to Bangladesh by train if you’re prepared to pop across the border between Turkmenistan and Iran on foot, but whether I would want to do it with the family in tow may be a moot point (Mr P would love it, no reader is to mention the possibility to him under any circumstances). On the other hand, the Orient Express does have its advantages, and having taken the Caledonian Sleeper through the Scottish Highlands, there could be something to this ‘journey/destination’ business. The difficulty, of course, as a North American member of the audience pointed out, is that travelling by alternative means requires an infrastructure which is all too often inadequate. Moreover, the British traveller will be all too aware that travel by rail is far more expensive and time intensive than travel by air. It is all very well telling the average British family that they should seek a bit of Winter sun by taking the family on the train to Bangladesh, but they’ll spend £300 just getting the train from Manchester to London, and by the time they arrive they’ll be exhausted and in no fit state to undertake the (significant) onward journey.

Conclusion

Readers will be astounded to learn that after an exhausting afternoon spent rehearsing the arguments and counter-arguments, I found myself quite unable to come down with any degree of certainty on one side of the other.

On the one hand, there’s no denying that flying for leisure purposes does impact the environment. On the other, the desire to travel and to explore is a very human one, and it can, if approached in a sufficiently open minded way, create a cultural exchange which could further mutual understanding between nations. Furthermore, some tourism is undoubtedly a force for good in the localities supported by tourists economically and philosophically.

And of course flying to Prague for the weekend for the PEOPIL conference is completely different, being in the nature of a cultural exchange which could not possibly take place remotely given the wine and dumpling sampling involved.

Thanks to Will Bicknell at Felloh, Rochelle Turner at Intrepid Travel, and Tom Power at Pura Aventura for having the idea, organising the logistics, and mostly keeping proceedings on the straight and narrow. And to the audience, without whose insightful comments and questions I could not have shone so brightly.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, 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 undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.