Leading industry lawyers agree Foreign Office advice against all but essential travel is not legally binding on travel organisers.
However, lawyers have warned failing to refund customers who cancel due to Foreign Office (FCDO) advice could damage confidence in the sector and said courts could find in consumers’ favour if claims go to trial.
Sarah Prager, a barrister at law firm 1 Chancery Lane, told the Abta Travel Law Seminar: “Foreign Office advice does not carry legal importance. It does carry relevance. It’s not legally binding, but we’re trying to build confidence and refusing a refund is not likely to do that.”
The industry has split over Abta policy that members fully refund customers when the Foreign Office advises against travel since Spain joined the UK’s quarantine-restrictions list in July. On the Beach and Loveholidays quit Abta in September over the policy.
Regulation 12.7 of the 2018 Package Travel Regulations gives consumers the right to cancel a package booking with a full refund in the event of “unavoidable and extraordinary circumstances” at the destination “or its immediate vicinity” which “significantly affect the performance of the package or the carriage of passengers”.
Rhys Griffiths, partner and head of travel at Fox Williams, said: “If the Foreign Office advises against travel, historically that meant there was a serious situation in resort. Where this issue has arisen is the way Foreign Office advice is used [now]. Blanket, worldwide restrictions lead to quarantine.”
Griffiths insisted: “Many companies have criticised the approach. The issue is around situations where Foreign Office advice is used maybe for public health reasons in the UK.”
Farina Azam, partner and travel lead at Kemp Little, agreed: “It comes down to an interpretation of the conditions.”
But she suggested: “If you want to overrule Foreign Office advice, it would need to be made clear in the terms and conditions at the time of booking. The EC has issued guidance on how to interpret the regulation and Foreign Office advice would be strong evidence that the regulation applies.”
Azam warned: “If a case goes to court, I think a court would come down on the side of the customer.”