The Dekagram: 18th March 2025

This week the team, in a shameless demonstration of our multilingualism, brings you an article on Covid refund claims rendered in no fewer than three languages. And to cap it all the subject of the article is a claim in which Deka’s own Tom Yarrow acted for the successful litigant, albeit the case continues. Intrigued? Read on…

Putting the boot on the traveller’s foot: reasons for termination under Regulation 12 (7) of the Package Travel and Linked Travel Arrangements Regulations 2018

The waves of litigation brought about by the Covid-19 pandemic continue to test the precision of the Package Travel and Linked Travel Arrangements Regulations 2018 (‘the PTRs’). The recent judgment in the case of Our Lady & St. John Catholic College v Acorn Travel Group Ltd [2025] 2 WLUK 582 addressed an interesting issue concerning unavoidable and extraordinary circumstances (‘UECs’). In this case HHJ Malek considered the interpretation of reg 12(7) and in particular, whether or not a traveller must give a reason for terminating their package holiday when UECs strike.

Reg12(7) reads:

(7)  Notwithstanding paragraphs (2) to (6), in the event of 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,

 the traveller may terminate the package travel contract before the start of the package without paying any termination fee.

The claimant in Our Lady was a school who cancelled a school trip during the early days of the Covid-19 pandemic in April 2020. They cancelled shortly before the package was due to commence following advice issued by the Department for Education that all educational trips be called off. The Spanish Government had closed all hotels, and only Spanish citizens were allowed to travel to the country.

The defendant, Acorn Travel, retained the claimant’s deposit of £13,755 and the claimant sought the return of that sum plus interest as damages for breach of the contractual terms implied by reg12(7).

That there had been UECs (as defined by reg.2(1) of the PTRS) in Spain at the time of the cancellation was not in dispute. What was at issue between the parties was whether or not the claimant had actually terminated the contract because of the UECs. The defendant argued that a claimant was only entitled to the reg12(7) “fee-free” termination if they could prove:

1. What their subjective reason for terminating had been at the time;
2. That this subjective reason was one which could be objectively regarded as UECs; and
3. That this subjective reason was sufficient cause for a decision to terminate (ie: a ‘but for’ test)

The claimant contended that this was entirely the wrong way to construe the meaning of reg12(7) and submitted as follows (para 30):

Whether there are extraordinary circumstances at the place of destination is an objective fact, with no requirement for a ‘but for’ causation analysis. If the fact of extraordinary circumstances exists, the traveller is able to terminate. His reasons for doing so do not matter: provided the necessary circumstances exist, it does not matter if there are other motives for terminating.

Unfortunately, the higher courts in England and Wales have never considered this particular issue and the European decisions which have addressed the point are now only persuasive. HHJ Malek sought some guidance on the intended purpose of reg.12(7) from the Package Travel Directive Transposition Workshops run by the European Commission in 2016-17, which recorded that “the PTRs intended to “create a real consumer market” and provide “a high level of consumer protection””. HHJ Malek found that if the Defendant’s interpretation of reg.12(7) was correct and the Court needed to “delve into the subjective reasons for cancellation” an unnecessary hurdle would be put in the way of enforcing these consumer rights and litigation would acquire unwelcome “complexity and length”.

The defendant made reference to the CJEU case of QM v Kiwi Tours GmbH [2024] 2 WLUK 501, which concerned the question of whether or not, when determining if a traveller had recourse to reg12(7), “account should be taken of the situation prevailing at the date on which the traveller terminated, or also of circumstances which arose after that date but before the start of the package concerned”. However, HHJ Malek was of the view that the Defendant was “not saved by reference to this case” and that QM was only support for the principle that “the organiser should be in a position on the date of termination (without waiting for further developments) to assess whether or not the traveller should be entitled to a fee-free refund so as to be able to make payment without unnecessary delay”. This approach would seem at first glance to tally with the practical reality of package organisers, who are surely always going to be in a better position to know whether there are UECs at the destination and therefore whether or not there might be reg12(7) terminations on the horizon.

Aside from the practical difficulties posed by a subjective reasons analysis, HHJ Malek ultimately found that the Defendant’s position didn’t reflect a tenable interpretation of what reg.12(7) actually says. On the contrary, HHJ proposed that  “The most that can be said is that there is an implied duty, under regulation 12, on the traveller to give notice that he is cancelling the contract before the start of the package.” At para 48, HHJ concluded “I can detect nothing in the statutory language that would suggest that the subjective reasons as to why the traveller is cancelling the contract is a necessary pre-cursor to the operation of Regulation 12.” The Court also agreed with counsel for the Claimant that “a judicial gloss which imports a…”but for” test would represent an unwelcome development.”

At para 33 HHJ Malek characterised this customer-minded interpretation of reg12(7) as putting “the boot firmly on the traveller/consumer’s foot” and it does seem to present a significant benefit to the holidaymaker that they can cancel due to UECs even when that was not in fact the reason for their cancellation at the time. As HHJ Malek commented at paragraph 47:

“At first blush there is, I accept something a little strange in a traveller terminating her contract for a reason wholly unconnected with the UEC and yet being able to rely upon the PTRs at a later date in order to secure a fee free refund.

Although the writer has been unable to obtain a transcript or record of the judgment, it is understood that in John Masefield High School v Class Tours Limited(unreported, 28 February 2025, Worcester County Court), HHJ Salmon agreed that there was no ‘but for’ test in Regulation 12(7) and the court did not need to enquire into the traveller’s subjective reasons for cancellation but the implied terms under Regulation 14 mean that the consumer has to say when cancelling that they are relying on “unavoidable and extraordinary circumstances”, because otherwise the organiser would not know to give a refund under Regulation 14(3). The practical effect of this judgment is not that the Claimant has to subjectively think of the “unavoidable and extraordinary circumstances” but must say they think it.

As slightly confusing as that logic might seem, the conclusion which HHJ Malek came to is not quite unassailable and permission was granted to appeal in Our Lady. The reader is invited to ‘watch this space’. It is however, humbly suggested that HHJ Malek’s decision, and his analysis of the law is correct, and ought to be upheld on appeal.

The Defendant’s strongest argument, it seems, is practical – that it is only when the Defendant knows it is a Regulation 12(7) cancellation, that their obligation to provide a full refund has been triggered (and the need to do so in 14 days under Regulation 14(3)(b)). The best way of so knowing is the traveller informing them of “unavoidable and extraordinary circumstances”. However, there are various ways to respond to that argument. The first of which is that the Regulatory scheme is clear when it places obligations on travellers (see for example Regulation 15(3)). This is in line with other “consumer friendly” pieces of legislation, such as the Consumer Rights Act 2015. To imply an obligation to inform would do violence to the Regulatory scheme contrary to Parliament’s clear intention. Further, the unfairness is mitigated by the objective test applied to “unavoidable and extraordinary circumstances”. The test is such that it should be obvious to any organiser when a traveller is utilising Regulation 12(7). There is no unfairness in the scheme, since the organiser has an equal entitlement under Regulation 13 (if not more entitlement due to the unavoidable circumstances triggering termination also being at the place of departure). Should organisers choose to inform a traveller of “unavoidable and extraordinary circumstances” that is their prerogative – at the end of the day, they are businesses with a higher level of knowledge than consumers, with an incentive to keep their customer base happy.

Further, as best put by HHJ Malek at Paragraph 47, to imply an obligation of the traveller to inform, is forcing subjective thinking through the back-door:

“However, that is only so if the PTRs require the traveller to have a reason in mind (to which the cancellation would then be linked) in the first place. As I have said earlier in this judgment, the test is objective and the subjective reasons for cancellation of the traveller are irrelevant. To be clear, when I say in this paragraph that the traveller is relying upon the PTRs at a later date that is not to say that events subsequent to the date of termination should be taken into account – when the traveller relies on the PTRs s/he must still demonstrate that the UECs existed on the day that the contract was terminated.”

It seems that the cause for confusion may be rooted in QM. The CJEU addressed Article 12(4) of the Directive (Regulation 14 of the PTRs 2018) at paragraphs 41 and 42:

“41. Next, article 12(4) of Directive 2015/2302 imposes on the organiser the obligation to refund the traveller concerned with the full amount paid in respect of the package, without undue delay and “in any event” within 14 days at the latest after that termination, inter alia, following termination without charge as provided for in article 12(2) of that Directive. That period is intended to ensure that the traveller will, shortly after the termination of that contract, once again be able to dispose freely of the sum spent on the package (Union federale des consommateurs—Que choisir v Premier minister (Case C-407/21) [2024] 1 CMLR 43, para 30). 

42. The imposition of such a maximum period suggests that the organiser should, in principle, be in a position to determine, immediately after the termination of the package travel contract concerned and therefore without waiting for subsequent developments in the situation, whether or not reliance by that traveller on the right to terminate his or her package travel contract without paying termination fees is justified and, if so, to take the necessary steps to ensure that a full refund of the payments made in respect of the package will take place within the prescribed period”.  

The word “reliance” has therefore been taken by organisers to mean that the traveller must inform the organiser of the “unavoidable and extraordinary” circumstances, so they can assess said “reliance” on the “unavoidable and extraordinary circumstances”. However, it is suggested that “reliance” as an English lawyer may interpret the word, is not exactly what the CJEU meant.

The original judgment was delivered in German. The German version uses the word “Berufung”.

42. Die Vorgabe einer solchen Höchstfrist deutet darauf hin, dass der Reiseveranstalter grundsätzlich in der Lage sein sollte, unmittelbar nach der Beendigung des betreffenden Pauschalreisevertrags und damit ohne die spätere Entwicklung der Situation abzuwarten, festzustellen, ob die Berufung des Reisenden auf das Recht, von seinem Pauschalreisevertrag ohne Zahlung einer Rücktrittsgebühr zurückzutreten, gerechtfertigt ist, und, wenn ja, die erforderlichen Schritte zu unternehmen, um zu gewährleisten, dass die volle Erstattung aller für die Pauschalreise getätigten Zahlungen innerhalb der vorgeschriebenen Frist erfolgt.

“Berufung” literally means to appeal, but in this specific context it means there is something which someone can refer to, to demonstrate a right – i.e. “whether or not reference to the right by the traveller to terminate”. “Reliance” in English has rather a different, weaker, meaning. “Berufung” has the connotation of a right, independent of any act on the part of the traveller.

This analysis is supported when looking at the Spanish version of the judgment (and at which point, this writer’s linguistic abilities have been exhausted), which uses “alegación”, meaning in a legal context, plea/allegation:

42. Pues bien, la imposición de tal plazo máximo sugiere que dicho organizador debería, en principio, estar en disposición de determinar, inmediatamente después de la terminación del contrato de viaje combinado de que se trate y, por tanto, sin esperar al devenir de la situación, si está justificada o no la alegación, por parte del viajero, del derecho a poner fin a su contrato de viaje combinado sin pagar ninguna penalización y, en caso afirmativo, emprender las gestiones necesarias para garantizar que el reembolso completo de los pagos realizados por el viaje combinado tenga lugar en el plazo establecido

It’s a bit clunky, but “appeal” may be more accurate:

42. The imposition of such a maximum period suggests that the organiser should, in principle, be in a position to determine, immediately after the termination of the package travel contract concerned and therefore without waiting for subsequent developments in the situation, whether or not appeal by that traveller to the right to terminate his or her package travel contract without paying termination fees is justified and, if so, to take the necessary steps to ensure that a full refund of the payments made in respect of the package will take place within the prescribed period”.  

Therefore, this analysis might assist dispel confusion caused by CJEU wording and further consolidate that a Claimant need not inform an Organiser of the “unavoidable and extraordinary circumstances”, in order to utilise Regulation 12(7).

The crucial point is the regulatory scheme is a scheme implied into contracts. So long as the terms are fair in accordance with the Consumer Rights Act 2015, and not contrary to the scheme, that does not prevent the organiser adding terms through agreement. For example, they could make it a condition that when travellers are cancelling under Regulation 12(7) that the circumstances are spelt out by the traveller at the time. Whether that is necessary in order for Regulation 12(8) refund entitlement, is another question, that this author considers ought to be answered in the negative.

Tom Yarrow acted for the (currently) successful claimant in Our Lady & St. John Catholic College v Acorn Travel Group Ltd [2025] 2 WLUK 582.

About the Author

Tom Clarke was called in 2022 and has a wide-ranging common-law practice across all of Chambers’ core areas. He is in court almost every day alongside a busy civil paperwork practice. He has a sensitive and patient manner with clients and witnesses alike. He has represented the families of recently deceased individuals in both inquests and clinical negligence proceedings and is part of a team at Deka Chambers working to update the vulnerable witnesses toolkit for the advocates’ gateway. Throughout 2024, Tom was brought in to assist with document work on multiple catastrophic injury claims by senior members of chambers and is currently being led by Giles Mooney KC in a childbirth hypoxia claim.

About the Author

Julia Brechtelsbauer gained tenancy having completed pupillage at Deka Chambers. Before coming to the Bar, she took an LLM in Comparative Private Law at the University of Edinburgh, and during this time she also tutored tort and EU law privately at undergraduate level. Studying Law with Spanish Law at the University of Oxford, Julia came first in her cohort in EU Law and Comparative Private Law, placing 5th overall. She has also been published by the Oxford University Undergraduate Law Journal, focusing on the defence of illegality in tort law. She has already been led by Sarah Prager KC in a paraplegia case involving complex issues around assumption of responsibility and is developing a thriving practice in international work.