 Poster: A snowHead
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| snowdave wrote: |
@Mr_frosty, I think that's a variant of Force Majeure. In a consumer contract, unless the terms were already in the contract, and were clear, fair and not one-sided, I struggle to see it sticking legally.
However, you're in a card scheme process, not a court of law. I don't think the card scheme process has an option that says "it wasn't my fault guv". Please keep us updated tho', because the rules may turn out to be fluid in these times. |
Thanks again snowdave, no the terms weren't in the contract, i saved an offline copy at the time just to be sure against extra edits. lets see how it goes.
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Obviously A snowHead isn't a real person
Obviously A snowHead isn't a real person
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we could do with a sticky with a definitive list of good guys who we should give our money to next / subsequent years and the ones that we should avoid.
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Well, the person's real but it's just a made up name, see?
Well, the person's real but it's just a made up name, see?
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^I'll be reviewing this topic prior to booking next season. Crystal Ski were extremely good with us after being repatriated from Italy. Slick operation to get us back as far as we were concerned and refund appeared in my bank account two weeks later without any intervention from me. An example of how it can be done.
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You need to Login to know who's really who.
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| Mr_frosty wrote: |
| Just a quick update on our chargeback claim, the travel firm are now attempting to dispute the claim under "The Doctrine of Frustration" anyone come across this before? |
It isn't quite the same as Force Majeure. In England & Wales, a contract can be set aside by a court if an unforeseen event makes it impossible for the contract to be fulfilled, with the court apportioning losses between the two parties.
IANAL but I can see this argument possibly working. A pandemic might be exactly the sort of unforeseen event in which this would apply. The supplier would be arguing that non-fulfillment was made impossible by a third party (government etc), so is neither their fault nor yours; both you and they have suffered some losses; the court should decide how to apportion those, i.e. what proportion of your payment should be refunded.
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Anyway, snowHeads is much more fun if you do.
Anyway, snowHeads is much more fun if you do.
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| Tiddles wrote: |
| we could do with a sticky with a definitive list of good guys who we should give our money to next / subsequent years and the ones that we should avoid. |
Totally agree we need a heavily moderated "Good Guys only" sticky thread to help us all decide where to spend our money in future.
My nomination is for Budget Rent a car. They rang me to inform me that Easyjet had cancelled my flight two weeks before Easyjet announced the cancellation and offered to cancel my hire car with full refund. Refund arrived 2 days later. 5 stars.
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You'll need to Register first of course.
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hotel schwartzer adler st Anton ,full refund
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| MikeM wrote: |
| Yoda wrote: |
| @MikeM, it was for accommodation only. |
Ah. Pity. If you'd also bought ski passes from them they'd still be liable. But, looks like you'll have to fight through the bank. May be useful to take a pop at them through ABTA - although, I have little faith in ABTA, but it might rattle a few cages. Personally, I'd take them through the small claims court. It's highly unlikely they'd turn up to dispute the case and you'd win by default, plus expenses.
I certainly won't be going anywhere near Sunweb next season! Good luck and tell us how it eventually works out. |
It was an accomodation and lift pass pass package....not helping with persuading them to cough up though
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| homphomp wrote: |
| MikeM wrote: |
| Yoda wrote: |
| @MikeM, it was for accommodation only. |
Ah. Pity. If you'd also bought ski passes from them they'd still be liable. But, looks like you'll have to fight through the bank. May be useful to take a pop at them through ABTA - although, I have little faith in ABTA, but it might rattle a few cages. Personally, I'd take them through the small claims court. It's highly unlikely they'd turn up to dispute the case and you'd win by default, plus expenses.
I certainly won't be going anywhere near Sunweb next season! Good luck and tell us how it eventually works out. |
It was an accomodation and lift pass pass package....not helping with persuading them to cough up though |
If you read the legislation I linked to earlier (package travel and linked travel arrangements legislation. 2018) you'll find you are covered and they have to refund within 14 days or they are breaking the law. The legislation doesn't just cover the travel part. Tell them you'll be reporting them and take them to court.
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You'll get to see more forums and be part of the best ski club on the net.
You'll get to see more forums and be part of the best ski club on the net.
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@MikeM and @homphomp, thanks - I'd forgotten about the lift passes. I think that they are well aware that they are breaking the law, but it appears that various companies think they can do this with impunity. We have reminded the bank of this (although I'm sure that they would already know) and trust that they take this into account during what is now "Stage 2" of the chargeback process...
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^Report them in any case. Your local Weights and Measures Authority is the enforcement body. I'd guess a letter from them would move things along. Punishment for flouting the regulations is a hefty fine and/or prison sentence. You might want to remind them, that should focus minds.
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snowHeads are a friendly bunch.
snowHeads are a friendly bunch.
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I raised a section 75 on my Amex BA card against Mark Warner, after giving up on them ever getting a refund. All looked good for a few weeks, until I noticed at the weekend the charge had been reinstated. I got their response back to American Express through the post today - MW are saying (abridging to save my typing):
1. Facts about my hol.
2. Our booking terms and conditions are governed by the Package Travel Regs 2018
3. Where we provide a booking as a tour op, the travel regs and our T&Cs apply
4.Where we are unable to provide the holiday for reasons of force Majeure such as covid 19 and travel has been banned by governments and/or FCO, our T&Cs take effect. Clause 8 confirms we do not accept liability or pay comp. where we are prevented from providing the holiday contract for reasons of F.M.
5. we always advise travel insurance, and it should cover situations such as this.
Therefore we are not in breach of any contractual obligation to <me> nor in breach of the Package travel regs given they are now in a state of review and consideration as to how they should respond to the covid outbreak
... go to small claims court, but our view is it'll be dismissed ... not appropriate to deal with matter via section 75 ... off you f**k ...
Gordon Spence
Head of customer service
(may have over-paraphrased in there somewhere ...)
Checking clause 8 it has the following wording:
8. Force Majeure
Except where otherwise expressly stated in these Booking
Conditions, we regret we cannot accept liability or pay
compensation where the performance or prompt performance
of our obligations under our contract with you is prevented
or affected by or you otherwise suffer any damage, loss or
expense of any nature as a result of ’force majeure’
So .... next steps ? I've reopened the dispute with American Express, and have to discuss with them over the phone. Not sure if I'm going to have to argue the intricacies of Force Majeure (which I'm barely familiar with save these threads) to some random call centre rep. Any suggestions ?
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And love to help out and answer questions and of course, read each other's snow reports.
And love to help out and answer questions and of course, read each other's snow reports.
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''Force majeure is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic or an event described by the legal term act of God, prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure.''
The last sentence may be a way forward at a later date. After all the epidemic/pandemic will not last for ever. As is states, SUSPENDS, not cancels.
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Ski Miguel
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You know it makes sense.
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What about them?
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Otherwise you'll just go on seeing the one name:
Otherwise you'll just go on seeing the one name:
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I thought Force Majeure meant that you couldn't be held responsible for failure to provide the contracted service, but that doesn't mean you can still charge for them.
For example: I'm building an office for a customer, a FM stops progress: I can't have liquidated damages taken from me for non completion to program, I can't be sued by the businesses unable to move in for their business interuption, BUT I can't still charge for a completed building when it's barely out of the ground. Ergo a company can't charge for a holiday it couldn't provide (so a refund) BUT it can't be sued by it's upset customers for the hardship they endured being denied their weeks skiing.
Also doesn't consumer rights trump any company's T&Cs?
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Poster: A snowHead
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Summer flight to Nice cancelled by BA on Friday. I called for a refund. Got through after 15 mins, money refunded onto card on Sunday. I know they can get a bad press but I have never had problems with BA.
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Obviously A snowHead isn't a real person
Obviously A snowHead isn't a real person
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@midgetbiker, but equally, in you example, you don't have to refund 100% of any stage payments you've already received; you've incurred some expense, so you get to keeep some payment. Both parties bear some of the loss.
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Well, the person's real but it's just a made up name, see?
Well, the person's real but it's just a made up name, see?
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@Pejoli, Given that the CMA have forced Hoseasons to refund over the weekend and have said that tour operators are next on their list perhaps you should refer them to the CMA.
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You need to Login to know who's really who.
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For clarity. The 2018 regulations cite
"unavoidable and extraordinary circumstances” means a situation—
(a)beyond the control of the party who seeks to rely on such a situation for the purpose of regulation 12(7), 13(2)(b), 15(14) or (16), 16(4)(c) or 28(3)(b); and
(b)the consequences of which could not have been avoided even if all reasonable measures had been taken;
In other words, holiday organiser's interpretation of Force Majeure can't be used as an excuse to avoid the regulations. The (old) ABTA rules stated something along the lines of "biological disaster" as a reason for full refunds in line with the regulations. Strangely, they've changed this and rewritten that section.
Edit. Bear in mind the regulations refer to refunds not compensation. They're only liable for refund not compensation.
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Anyway, snowHeads is much more fun if you do.
Anyway, snowHeads is much more fun if you do.
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@ecureuil, in my example any staged payments received have nothing to do with what expenses incurred, but rather the extent of what has been delivered. Even if it's for as yet unfitted items (eg windows) the goods have to be on site (so delivered) and you only get the 'supply' portion, not the 'and fit' portion (until they are subsequently fitted).
@MikeM,
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Edit. Bear in mind the regulations refer to refunds not compensation. They're only liable for refund not compensation.
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Exactly, FM means they have no consequential liability, but not that they can charge for undelivered goods and/or services.
Last edited by Anyway, snowHeads is much more fun if you do. on Wed 10-06-20 9:31; edited 1 time in total
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All 'imo' by the way, I'm definitely no solicitor.
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| Yoda wrote: |
The latest in our chargeback saga with Sunweb:-
"Hereby we decline your request for a chargeback. Although we regret that the travel couldn't be made due to the coronavirus, based on general English agency law principles, sales agents should not be held liable for services which have not been performed by the principal supplier. A chargeback cannot be made against Sunweb Group UK Ltd based on a cancellation by a third party, Sunweb Group GmbH. In addition, the customer will receive a credit note which will be refundable in due course (example of the creditnote and booking invoice is added). Please confirm the chargeback will not be granted."
So we can't claim against Sunweb UK because Sunweb GmbH is a "third party" ? This is taking the wee wee is it not?
Anyone on here who can advise on what "general English agency law principles" are relevant here? |
We've been waiting to hear about a chargeback claim against Sunweb but have now decided to go the Money Claims Online route (small claims court).
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^well done. Download a copy of the 2018 regulations and highlight the relevant points to make your case. Include these in your submission.
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You'll get to see more forums and be part of the best ski club on the net.
You'll get to see more forums and be part of the best ski club on the net.
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It's interesting seeing Sunweb cropping up here with such frequency re refund/cancellation problems as the other day, I spoke to a service provider, of not insignificant size, who said that Sunweb owed them rather a lot of money for which they were having difficulty nailing down an exact schedule for payment.
I understand (anecdotally) that Sunweb began as a Dutch company but is now based in Switzerland. I don't know if that has any bearing on their approach to these matters?
In the interest of gaining a fuller picture or perhaps gaining useful advice for those in need (and given the topic title's reference to the 'Good Guys'):
Are there any snowHeads with tales of success in dealing with Sunweb over the course of this zombieApocalypse?
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i'd also be interested to hear of customer success where any tour operator has not obliged with a refund or a voucher/credit offer isn't acceptable to you. success via S75, chargeback, insurance, small claims court or where CMA has intervened for e.g. not asking for a name and shame list but just stories of success, perhaps its too early given these processes can take time.
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snowHeads are a friendly bunch.
snowHeads are a friendly bunch.
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Ryanair refund popped into my account yesterday.
8 weeks after cancellation and 2 weeks after I instigated chargeback process with my bank (a cynic might suggest there was a connection with that).
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And love to help out and answer questions and of course, read each other's snow reports.
And love to help out and answer questions and of course, read each other's snow reports.
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@Mr_frosty, AIG insurance were holding out on a (non cancelation related) claim.
I threatened them with FCA complaint and they got back to me very quickly and paid out within a couple of days.
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@NickYoung, was it from Ryanair, or via chargeback? My Ryanair charge back is still showing as a temporary refund on Barclaycard
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You know it makes sense.
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Well, I spoke to AmEx - after one round of call centre muppetry, I got through to a very helpful person. It turned out they had only raised a 'courtesy dispute' at this stage (I just triggered it though marking the txn as disputed on the website). They said unless I had documentation I was actually owed a refund (which technically I don't - a common sense argument doesn't count here), they wouldn't re-dispute - and they weren't a legal team, so therefore wouldn't consider the arguments I made around Package Travel Regs '18, or mentions of the CMA position.
They have however now converted it into a formal Section 75 dispute, and that will trigger their legal team to get involved. She did point out there's no time-limits on those getting processed or resolved, and there's a backlog ... so sounds like this might be a drawn-out process.
Ho-hum - let's hope CMA up their pace a bit!
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Otherwise you'll just go on seeing the one name:
Otherwise you'll just go on seeing the one name:
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Just in case anyone is still waiting on Easyjet refunds, don't give up hope! I got mine through yesterday (took approx 2 months).
Also, for comparison:
Norweigan took about a month (and about a million online forms).
Holiday Club Are refunded straight away and with absolutely no argument (despite not being contractually obliged to), so definitely one for the good guys list!
Copperhill (also in Are) offered a switch to next season, which suited us, so we took it (this was before things got really bad, so we never actually asked for a refund, so not sure how that would have been handled).
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Poster: A snowHead
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| Pejoli wrote: |
Well, I spoke to AmEx - after one round of call centre muppetry, I got through to a very helpful person. It turned out they had only raised a 'courtesy dispute' at this stage (I just triggered it though marking the txn as disputed on the website). They said unless I had documentation I was actually owed a refund (which technically I don't - a common sense argument doesn't count here), they wouldn't re-dispute - and they weren't a legal team, so therefore wouldn't consider the arguments I made around Package Travel Regs '18, or mentions of the CMA position.
They have however now converted it into a formal Section 75 dispute, and that will trigger their legal team to get involved. She did point out there's no time-limits on those getting processed or resolved, and there's a backlog ... so sounds like this might be a drawn-out process.
Ho-hum - let's hope CMA up their pace a bit! |
The good thing with Amex is that they don't expect you to pay it whilst the dispute is on. I posted earlier in the thread that I had both the Amex dispute process started and an insurance claim which suddenly paid out when it looked like they were stalling. I cancelled the AMEX dispute but someone said they though I should have refunded the insurance instead so the vendor was ultimately responsible. I think I was probably concerned my dispute would go down the road you have described so thought the cash (less excess) in hand was the better option. Still rankles that Ski France got away with my money though.
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Obviously A snowHead isn't a real person
Obviously A snowHead isn't a real person
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@dunc999, the potential problem is that since you could have got the refund by another route then technically you may have committed insurance fraud. (Not clear cut because, as you explained, when you made the insurance claim you hadn't received the alternative offer, so it certainly wasn't deliberate at the time). But because the insurance industry suffers from a number of deliberately fraudulent claims it maintains an industry-wide database that shares details of most home/motor/travel claims for a period of some years, so if you have to make any future claims on such contracts they could be flagged for more detailed investigation. And irrespective of that, the simple fact that you have made a claim might have an impact on your future premiums.
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Well, the person's real but it's just a made up name, see?
Well, the person's real but it's just a made up name, see?
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@ecureuil, I was worried about that which is why I cancelled the Amex dispute as soon as I had the refund from the insurance. I only started the Amex dispute alongside the claim when it started to look like my insurance wasn't going to pay out, then suddenly out of the blue I had the mail confirming refund, so I cancelled Amex.
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You need to Login to know who's really who.
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So looking like we are getting toward a list of the major league shysters we should all avoid in the future?
Who is on it?
Sunweb?
Alpine Elements?
Mark Warner?
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Anyway, snowHeads is much more fun if you do.
Anyway, snowHeads is much more fun if you do.
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@dunc999, maybe the best route with hindsight (and I'm certainly not criticising what you did at the time) would have been take the insurance money but let them know you still had a section 75 claim in and that if it came good you would return the insurance pay out. Similar to if you lose a piece of jewelry, claim, then find it down between the sofa cushions. The jewelry technically belongs to the insurer now, so you call them up to either send them the piece, or buy it off them by returning the pay out.
At the start of all this I put an insurance claim in, with flights, a school trip, ferry, ski pass (one claim as it all rolled up into one two centre trip), but told them I hoped to settle each item with the provider as first recourse. Over April and May each provider either refunded or made an offer I found acceptable, so I just closed the claim down.
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You'll need to Register first of course.
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@Dave of the Marmottes
Surely Ryanair needs to be on there for their equivocation. Plus (according to MSE) the claims by their call handlers that starting a section 75 is fraud!
Not that it will stop us using them after this, if they are the ones going from the A to B we need.
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@dunc999, yes, that was me re insurance vs chargeback. I'm currently in the position that my S75 claim (which Barclaycard has actually turned into a chargeback) is in process, and my insurance company has offered to continue my claim (and implied this is the final stage before it pays out), but I'm holding off for another 10 days to see what happens to the credit card claim.
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@snowdave, My chargeback to Ryanair with BarclayCard is still showing as temporary. Any idea how long it is before its clawed back or made permanent?
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You'll get to see more forums and be part of the best ski club on the net.
You'll get to see more forums and be part of the best ski club on the net.
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| 1gunsalute wrote: |
| I may end up having to accept a Refund Credit Voucher for my 2020 holiday that didn't happen. I've heard that one problem with a voucher is that it isn't protected if the company then goes bust (ATOL/ABTA protection only applies to holidays not to vouchers). But does anyone know what happens if I use the voucher as deposit to book a holiday for 2021 - would my deposit then be protected? |
It isn't a voucher, or shouldn't be, it's a Refund Credit Note (RCN) which must have a cash in date (a backstop date) usually 31st Jan 2021. This has a cash value and it's protected by ABTA/ATOL.
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@CaravanSkier, officially, an acquirer (Ryanair's bank) has 30 days to respond to a chargeback once the issuer (your card company) presents it. Acquirers usually try and inform the merchant very quickly (same day) and tend to give merchants 14 days to provide them a response (that's within this 30 day window, giving the merchant 14 days of it allows the issuer a bit of time to check and process the paperwork).
However, what can then happen is that your issuer doesn't agree with the response and goes back to the acquirer to continue the dispute ("Re-present the chargeback"); this could happen behind the scenes without you being notified; this can take your issuer up to 30 days to "Re-present". Then the acquirer has to decide (more usually, ask the merchant) if it wants to dispute the "re-presentment" and go to arbitration - not sure how long this is.
So, in theory, you could have a clear answer in 30 days if the merchant/acquirer fails to respond to the original chargeback, or it could be 60 days (if they do a second loop) or ? if they go to arbitration.
I doubt Ryanair will dispute the chargeback - if its going to refund you anyway, there's no point disputing the chargeback just to do the refund. What it might do is refund you through the normal process, then dispute the chargeback on the grounds of "refund already made" which is valid, but will have to prove the refund.
Edited to add - those are the Visa timings (which I'm familiar with because I have a Visa card so looked up the latest rules for my chargeback) - Mastercard and Amex are different.
Last edited by Ski the Net with snowHeads  on Fri 12-06-20 12:09; edited 1 time in total
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FAQ
