APPEAL NO: BM40185A
(On appeal in claim 068DC628)
Bull Street, Birmingham |
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B e f o r e :
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EVERSFIELD PREPARATORY SCHOOL TRUST LIMITED |
Appellant / Claimant |
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- and - |
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DIVERSE WORLD LTD (TRADING AS DIVERSE SCHOOL TRAVEL) |
Respondent / Defendant |
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Mr Adam Riley on the appeal and Mr Rory Turnbull on consequentials (instructed by Kennedys) for the Respondents
Hearing dates: 2nd and 27th June 2025
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Crown Copyright ©
HHJ TINDAL
The Issue
(1) The appeal raises an issue which specialist Counsel - Mr Kennedy for the Appellant and Mr Riley for the Respondent – report is regularly taxing judges in County Courts. Because most of those judgments are not published, County Court judges have taken different approaches, which I will review to endeavour to summarise current County Court authority.
(2) Secondly, another reason for divergence is the absence of any High Court or Court of Appeal cases on the issue. ((1) and (2) together permit citation of a County Court judgment under p.6.2 of the Citation Practice Direction).
(3) Thirdly, this case raises a new point of principle under para.6.1 of the Citation Practice Direction: namely the status in the County Court of post-Brexit EU Court of Justice ('CJEU') decisions, which are not binding on any domestic court under ss.6(1)-(2) EU Withdrawal Act 2018 ('EUWA'). Here, all the relevant CJEU cases were decided after Brexit was implemented by the EUWA on 31st December 2020 ('I/P completion day'). So, we have the remarkable situation of an abundance of County Court and CJEU decisions, but no binding domestic or EU authority at all. How are County Judges to choose between 'persuasive' decisions of their colleagues and 'persuasive' decisions of the CJEU ? Are those equally 'persuasive' ?
"…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."
(1) Firstly, I agree with HHJ Malek in Our Lady that Reg.12(7) 2018 Regs asks three questions, assessed as at the date of cancellation, without hindsight:
i. Where was the 'place of destination or its immediate vicinity' ?
ii. Whether at that destination/vicinity at the date of cancellation there were occurring 'unavoidable and extraordinary circumstances' ?
iii. If so, did those circumstances at the cancellation date 'significantly affect' performance of the particular upcoming package (or carriage of passengers to the destination) ?
(2) I also agree with HHJ Malek in Our Lady - and (albeit only partly) disagree with HHJ Salmon in John Masefield - that not only the 'causation' test, but also the 'reasons' test are each impermissible glosses on Reg.12(7).
(3) I consider this is also consistent with EU Law explained in MD, QM and GF
(4) The DDJ below strayed into legal error in some - but not all - respects.
(5) On the undisputed primary facts before the DDJ, when applying the correct legal test, the claim should succeed in full. So, I will allow the appeal.
The Primary Facts
"83 Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to evaluation of those facts and to inferences to be drawn from them. The reasons for this approach…include: (i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed; (ii) The trial is not a dress rehearsal. It is the first and last night of the show; (ii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case; (iv) In making [her] decisions the trial judge will have regard to the whole of the sea of evidence presented to [her] whereas an appellate court will only be 'island hopping'; (v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence); (vi) Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done….
85 In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: (i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support. (ii) Where the finding is infected by some identifiable error, such as a material error of law. (iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
86 An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to exercise of a discretion and appellate courts should approach them in a similar way. [It] does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
87 The degree to which appellate restraint should be exercised…may be influenced by the nature of the conclusion and the extent…it depended upon advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from firsthand experience of the testing of the evidence, or because of particular relevant specialist expertise."
This discussion of 'evaluation of facts' reflects Re Sprintroom ]2019] EWCA Civ 932 at [76] - aka Prescott v Potamianos - to which Mr Riley referred me:
"[O]n a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion."
I will bear that caution fully in mind – especially when analysing the DDJ's 'evaluation of facts' in the present case: e.g. whether the different elements of Reg.12(7) applied to the primary facts she had found.
"Schools and colleges are being advised against all overseas trips for children under 18 until further notice."
That advice ended by advising schools to contact their insurers and that the DoE would monitor the situation. Responding to that, the Association of British Travel Agents ('ABTA') on 13th March issued a joint statement on behalf of its members:
"Our current understanding of the situation regarding school trips is as follows. The Government has advised schools they should not undertake international school trips at this stage, This is due to concerns that the schools would face significant challenges in making arrangements to ensure children's welfare should adult supervisors be required to self-isolate. Schools will decide how to act upon this advice. If schools do cancel their trips, normal cancellation terms will apply. Schools should contact either their own general insurers or the [DoE] as they may have some financial cover in place for this scenario. This is one of the areas we are seeking clarity on urgently so we will update again as soon as we have more information."
As I shall discuss, there was evidence before the DDJ that by the 13th March, the Spanish Government was also taking action in response to COVID-19.
"All our school trips due to depart between now and 16 April will be cancelled unless the school specifically requests otherwise. In normal circumstances, the Package Travel Regulations require that full refunds should be given to all schools who are affected by this similar travel advice."
Mr Tunstall noted the Government were being lobbied to allow dispensation from the 2018 Regs, as had been done in Italy and France. (I touch on this point in discussing EU Law later). However, Mr Tunstall continued:
"All trips beyond 16th April are currently scheduled to continue as normal unless or until the Government extends their travel advice, or if the local authorities at your trip destination have in place similar advice against travel. If your trip is due to depart after 16th April [as of course the trip in this case was], we are sorry but for now normal terms and conditions need to apply should you wish to cancel. If your trip is due to depart after 16 April but you wish to cancel, please let us know as soon as possible."
For the Appellant, Mr Robbins who had organised the trip, replied on 19th March:
"Thanks for the information. I have passed it on to my Head. I guess there is nothing we can do at the moment. Not a good time for your business right now. Hopefully not too long before we can start moving around again. We were really looking forward to the trip, as were the kids. I can't see it going ahead but we will wait and see."
However, whilst the DDJ did not mention it, the Respondent's Defence also admitted the indisputable and well-remembered events that on 17th March 2020, the Foreign and Commonwealth Office ('FCO') had advised against all but essential travel abroad; on 20th March, the DoE announced the closure of all UK schools and on 23rd March, the UK entered the first COVID-19 lockdown.
"17. It was left to Mr Robbins to communicate…as he was the organiser …and it appears from his email exchange with Mr Tunstall, it appears that rather than simply following government advice by cancelling straight away, the school was waiting and hoping for better news and presumably only cancelled when they realised the situation was not going to improve. But did they cancel because the defendants were not going to be able to fulfil the contract ?
18. The defendants through Mr Gardiner admit that in the event, come 11 May, that would have been the case and at that date they would have been obliged by virtue of Reg.12(7) to refund the full cost.
19. In paragraphs 11 to 12 of his witness statement Mr Robbins sets out the school's reasons for cancelling. As he says: '[The school Finance Officer] made the decision to cancel the scheduled visit. The decision was made on or around 1 April and was conveyed to the defendants on the same day informing the decision the school considered the likelihood of the visit going ahead, the current UK government advice and the current lockdown and travel restrictions in place in Barcelona at the time. The key concern was of the health and wellbeing of our students and staff as well as the guidance being provided by the UK and Spanish Governments as Covid infection rates were on the increase and there was no reasonable possibility of the current restrictions being lifted by May 2020, we knew the visit could no longer go ahead as planned'."
"I have received the email. I forwarded it to my Head. Not sure what position we are in now. We won't be going. I don't think we will be in school then. Spain is in a bit of a mess more so than here. Is it up to us to cancel and claim on our insurance ? I didn't really see what else to do."
The DDJ found at paragraph 23 of her judgment that:
"It is reasonably clear from [the email exchange] that it was a combination of factors that led to the school to cancel the contract…It was partially the guidance being given by the Government and by ABTA, it was partially the fact that [the children] were not in school; and it was partially because the Pandemic was simply not subsiding as it had been hoped it might have done
Mr Kennedy on behalf of the Appellant did not challenge that factual finding, although, as I discussed below, he argued that it asked the wrong question by focussing on the Appellant's reasons for (or causation of) cancellation. He did however place emphasis on the third factor that the Appellant in part cancelled as 'the Pandemic was simply not subsiding as it had been hoped it might have done'.
"12 The claimant argues these circumstances fall squarely within Reg.12(7) essentially because there was a global pandemic at the time and the contract could not have been performed by the defendants because Spain, like the UK, remained in lockdown as at the date the trip was due to take place.
13. The defendants argue that as at the date of cancellation, 1st April 2020, that was not clear-cut. Mr Gardiner gave evidence that Spain's lockdown was not-open-ended. It was declared for an initial period of two weeks within which it was to be reviewed and although in the event it was continued into May, it was not, as at 1st April, certain that it would be. Mr Gardiner's evidence was that the flights that the school were due to take had not been cancelled and that the hotel that they were due to stay in remained open on the scheduled dates in May. The defendants had taken the decision on 19 March that all trips after 16 April…were scheduled to continue as normal….
15. Mr Kennedy [then as now] on behalf of the claimants has argued that it is self-evident that in the circumstances of the pandemic being global and affecting Spain just as it affected the UK, that the circumstances occurred at the destination of Barcelona. The claimants have produced various newspaper articles commenting upon the situation in Spain in the Spring of 2020, however they have not produced or exhibited any detail of [Spanish] Government guidance with regard to travel to or within Catalonia, or the dates or specifics of lockdowns in that area.
16. Mr Riley [then as now Counsel for the Defendants] highlighted this deficiency in the claimant's evidence. It is indeed a deficiency in a case where the claimants rely upon the wording in the regulation. In addition to arguing that as at 1 April the status of the future of the lockdown in Spain come May 2020 was unclear, the defendants further contend that the claimant's decision to cancel was due to the Government guidance here….
20. Is it fatal to the claim that the claimants have not produced evidence of the travel restrictions in Barcelona at the time or the guidance being provided by the Spanish Government ? We are all aware now, of course, that restrictions continued for months, not weeks, both here and in the rest of Europe, but the issue must be what were the circumstances as at cancellation on 1st April ? What was known at that point in time ?"
"The Claimant failed to satisfy the Court that Reg.12(7) [2018 Regs] applies as they failed to produce evidence that the 'unavoidable and extraordinary circumstances' occurred at the 'place of destination'. Although this was a global pandemic, the restrictions pertaining in the destination in Spain were not evidenced and the Court concluded that the decision to cancel the trip was a consequence of government advice in the UK and pessimism as to whether the trip could proceed. The Defendants contended that at the time of the cancellation the booked flights remained scheduled and the hotel would be open and the Claimants did not challenge this." (my italics).
It is true that the Appellants did not produce evidence of the Spanish Government's travel restrictions or guidance relating to Barcelona as at 1st April 2020. However, on my reading of her judgment, she accepted the Respondent's admission in evidence that lockdown was still in force across all Spain on that date and if she did not, that would be plainly wrong. In any event, the DDJ certainly did not find the Pandemic was not affecting Barcelona on 1st April that date and if necessary, I would conclude her omission to find Barcelona was affected was plainly wrong.
"[A] Guardian article dated 25th March 2020…states…on the evening of 12th March, the Catalan Government ordered a lockdown for 14 days, i.e. it would appear until 26 March…[T]here is no indication whether these restrictions would continue in place and if so on what terms and for what further duration. Certainly, there is nothing here [on] what circumstances would likely prevail in mid-May… Taken at their very highest, [all] the articles suggested that in Catalonia a lockdown had been ordered on 12 March 2020 that would end at or around 26 March 2020 and that, alongside this, the Spanish Government had declared a State of Emergency of 14 or 15 days duration that would end at or around 30 March 2020, some six weeks before…the Trip. The Appellant put before the court no material at all to show with any certainty, from the vantage point of the date of cancellation, that circumstances would exist as at the date of…performance that would significantly affect the Trip."
Indeed, at their very lowest, those articles evidenced that as late as 25th March 2020, only days before cancellation on 1st April 2020, (i) Coronavirus had spread rapidly throughout Spain, including Barcelona; and (ii) there was still a national lockdown.
"Mr Kennedy (Counsel for the then-Claimant):..[Y]ou were aware that there was a lockdown in Spain in March 2020 [?]…
Mr Gardiner: Yes, we were aware that the Government announced a lockdown with a definite duration….not an indefinite duration and not a duration which spanned the date it was initiated and the departure date of the trip….We were aware that Spain introduced a lockdown and advised that they would review that decision within two weeks…
Mr Kennedy: You are aware that the lockdown in Spain continued…from March 2020…And as part of that lockdown people who lived in Spain were allowed to leave their homes to get food and medicine, but all non-essential businesses were closed ?
Mr Gardiner..Lockdown announced in March, yes….They were…
Mr Kennedy: That was in place. That was announced in March and continued throughout May.
Mr Gardiner: I think it is important that they were closed, or they were not available during the definite period of the government-announced lockdown. …In March there was no indication…that the businesses………
So, the [Spanish] Government announced a 14-day, 15-day – I cannot remember now – review period. They locked down along the lines that you just mentioned, but they said they would review that within two weeks, within 14 days or 15 days. There was no advice at that point regarding the operations of businesses beyond that review point.
Mr Kennedy: But in fact, I think the question that I had asked, and you have already answered this but just so that judge has it, in fact you accepted that lockdown did continue throughout May 2020.
Mr Gardiner… I do not think there was an official announcement by the Spanish Government, but after 1 April, it would have been 3 or 4 April, or something like that, the..Spanish Government did not change its advice.
Mr Kennedy The question was that lockdown continued through May 2020?
Mr Gardiner: Yes it did, but again you know, I say there is no scope for hindsight in the package travel regulations…."
So, Mr Gardiner admitted what might be thought to have been obvious: the Spanish lockdown announced around 14th March (which he did not suggest had excluded Barcelona which although autonomous is after all part of Spain) continued from 16th March 2020 through to May 2020. Indeed, he actually admitted it had not changed by 3rd or 4th April: i.e. it continued on 1st April. Indeed, as I have said, the DDJ herself in her judgment at [13] said (my emphasis):
"Mr Gardiner gave evidence that Spain's lockdown was not-open-ended. It was declared for an initial period of two weeks within which it was to be reviewed and although in the event it was continued into May, it was not, as at 1st April, certain that it would be."
There is no suggestion the DDJ did not accept Mr Gardiner's evidence about this.
The DDJ's Conclusions and the Appeal
"…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."
"14. It is clear that in order to rely on Reg.12(7) the claimants must satisfy the court that the event of unavoidable and extraordinary circumstances occurred at the place of destination or its immediate vicinity: that is, Barcelona; and that it significantly affected the performance of the package for [sic] the carriage of passengers to the destination and only in those circumstances is a termination fee not payable….
20. Is it fatal to the claim that the claimants have not produced evidence of the travel restrictions in Barcelona at the time or the guidance being provided by the Spanish Government ? We are all aware now, of course, that restrictions continued for months, not weeks, both here and in the rest of Europe, but the issue must be what were the circumstances as at cancellation on 1st April ? What was known at that point in time ?
21. The defendants argue this is the basis of Reg.12(7) because of striking the balance between fairness to the consumer and to the commercial business, hence the reason when the Regulation was drafted it was determined that the extraordinary circumstances must occur at the destination rather than [including] the place of departure…
22. [The DDJ repeated the parties' email exchange on 1st April 2020]
23. It is reasonably clear….that it was a combination of factors that led the school to the decision to cancel the contract….It was partially the guidance being given by the Government and by ABTA, it was partially the fact that [the children] were not in school; and it was partially because the Pandemic was simply not subsiding as it had been hoped it might have done.
24. Having considered the wording of the regulation and the background to it, it is clear it is a protection for consumers in circumstances where a package provider is unable to provide the package solely because of something arising at the destination, not where circumstances at home prevent the travel. I have taken this into account as it seems unlikely when these regulations were drafted a global pandemic was in contemplation.
25. My conclusion is that the claimant's evidence falls short of satisfying the court on the balance of probabilities that Reg.12(7) could be relied upon as at the date of cancellation of the contract; and that common knowledge, particularly that gained with hindsight, are in the absence of detail applicable to the particular destination, insufficient to support the claim. In all the circumstances therefore and taking into account all the evidence that I have read and heard today, the claim must be dismissed."
"The Claimant failed to satisfy the Court that Reg.12(7) [2018 Regs] applies as they failed to produce evidence that the 'unavoidable and extraordinary circumstances' occurred at the 'place of destination'. Although this was a global pandemic, the restrictions pertaining in the destination in Spain were not evidenced and the Court concluded that the decision to cancel the trip was a consequence of government advice in the UK and pessimism as to whether the trip could proceed. The Defendants contended that at the time of the cancellation the booked flights remained scheduled and the hotel would be open and the Claimants did not challenge this."
This makes it clear the DDJ focussed not on whether the package was 'significantly affected' (which she did not mention), but whether the evidence showed that on 1st April 2020 there were 'unavoidable and extraordinary circumstances' at the 'destination' in Barcelona rather than in the UK; and on the cause of cancellation.
(1) That the DDJ erred in law by finding Reg.12(7) 2018 Regs only gives a right to cancellation and refund where a holiday is cancelled solely because of unavoidable and extraordinary circumstances at the place of destination. In other words, the DDJ was wrong to find the Appellant was required to prove that 'but for' the existence of extraordinary and unavoidable circumstances at the place of destination, the package holiday would not have been cancelled.
(2) The DDJ erred in finding that the evidence before her did not show that as at date of cancellation on 1st April 2020, the global COVID pandemic constituted unavoidable and extraordinary circumstances in Spain that would significantly affect (i) the package holiday or (ii) carriage of passengers to Spain.
(3) (In effect) The DDJ erred in failing to take judicial notice of that fact.
The Law
Statutory Interpretation and Precedent after Brexit
"A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive it seeks to implement."
In EU Law, this is called 'Indirect Effect', which as Lord Kerr explained at [30] of Swift, goes further than domestic statutory 'purposive interpretation'. Therefore, in Swift, Lord Kerr derived from an EU directive and CJEU decisions that one purpose of the EU directive regulating consumer contracts made away from business premises (including in the consumer's home) was to protect consumers by giving them a 'cooling-off' period in which to cancel. This purpose was adopted by our Parliament in the domestic legislation, as shown by an Explanatory Memorandum (which accompanies draft secondary legislation to Parliament to assist debate, just as 'Explanatory Notes' accompany draft primary legislation). Lord Kerr held the directive's purpose would be undermined if the consumer could only cancel if the trader gave him notice of that right, that would encourage traders not to inform people. So, where a literal interpretation of the domestic regulations would defeat the directive's purpose, they should be interpreted to avoid it, both under domestic 'purposive interpretation' and if necessary, by the more robust EU 'indirect effect'.
(1) The first category is for cases where the cause of action accrued before 2021, which EUWA preserved as 'retained EU Law' irrespective of later changes in law, as in Lipton v BA CityFlyer [2024] 3 WLR 474 (SC) and this case.
(2) The second category is causes of action accruing in 2021, 2022 or 2023 (assuming Lipton or s.16 Interpretation Act 1978 mean REULA does not apply). EUWA states whether 'indirect effect' applies depends if domestic law implementing EU Law has been amended since 2020 and if so, how.
(3) The third category is causes of action accruing from 1st January 2024. These are clearly governed by REULA's amendments to EUWA, where 'indirect effect' of Directives no longer applies, even to unamended domestic law.
"(1) A court or tribunal (a) is not bound by any principles laid down, or any decisions made, on or after IP completion day by the [CJEU] and (b) cannot refer any matter to [the CJEU] on or after IP completion day.
(2) Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after IP completion day by the [CJEU], another EU entity or the EU [itself] so far as it is relevant to any matter before the court or tribunal.
(3) Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after IP completion day and so far as they are relevant to it—(a) in accordance with any retained case law and any retained general principles of EU law, and (b) having regard (among other things) to the limits, immediately before IP completion day, of EU competences….
(7) In this Act—'retained case law' means (a) retained domestic case law, and (b) retained EU case law; 'retained domestic case law' means any principles laid down by and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before IP completion day ...'retained EU case law' means any principles laid down by, and any decisions of, the [CJEU] as they have effect in EU law immediately before IP completion day…'retained EU law' means anything which, on or after IP completion day, continues to be, or forms part of, domestic law… (as that body of law is added to or otherwise modified by …domestic law..) 'retained general principles of EU law' means the general principles of EU law…as they have effect immediately before IP completion day."
s.6(4)-(6) (and subordinate legislation) provided that the Supreme Court and Court of Appeal could depart from CJEU decisions even if decided before 2021 on the same test for the Supreme Court to depart from its own decisions. But that does not apply to the County and High Courts, which in 'category 1' cases stay bound under s.6(3) EUWA by EU Law (including CJEU decisions) as it stood at the end of 2020.
"110. [ss.6(1)-(2)] mean domestic courts and tribunals are able to have regard to actions of the EU taken post-exit, including CJEU decisions, where…relevant to any matter the court or tribunal is considering ….[However], it cannot have regard to such an extent it considers itself bound by them (as this is ruled out by subsection (1)).
111. Subsection (3) provides that any question as to the meaning of unmodified retained EU law will be determined in UK courts in accordance with relevant pre-exit CJEU case law and general principles. This means, for example, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant materials such as the treaty legal base for a measure, its recitals and preambles and the travaux preparatoires - working papers - leading to the adoption of the measure). It also means applying an interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law. Non-binding instruments, such as recommendations and opinions, would still be available to a court to assist with interpretation of retained EU law after exit.
112. UK courts will also be required to interpret retained EU law by reference to (among other things) the limits of EU competence, as it exists on the day the UK leaves the EU….
114. Subsection (2) is subject to the rest of section 6. This means that, although all courts can have regard to post-exit CJEU decisions, unless and until the [UK Supreme Court or Court of Appeal]…have departed from pre-exit CJEU case law, the latter remains binding on lower courts even if the CJEU has departed from it after exit day."
(1) Firstly, the County Court is bound by EU Law, including CJEU decisions, as they stood at the end of 2020 (s.6(3)). This means the domestic legislation should be interpreted consistently by 'indirect effect' with EU Law as it stood at the end of 2020, as it was before Brexit as in Swift. In Lipton, this was an established line of CJEU cases on airlines compensation for delay;
(2) Secondly, the County Court is not bound by new EU Law, including CJEU decisions, since the start of 2021, but may take those cases into account.
(3) Thirdly, a post-2020 CJEU decision may actually reflect and evidence the state of EU Law at the end of 2020 – e.g. if it just applies a principle well-established before 2021. In that situation, arising in Lipton and TuneIn, the actual principle is binding and whilst the new CJEU case is not binding, it may be highly 'persuasive' (to use the expression used in Lipton at [158]).
(4) Fourthly, to the extent that a post-2020 CJEU case develops a new principle which was not part of EU Law as it stood at the end of 2020, the new CJEU case may be less 'persuasive' and subject to any contrary binding domestic authority, even if decided prior to 2021, as in Umbrella Interchange.
(5) Finally, if an EU directive was implemented in domestic legislation before 2021 but there are no CJEU decisions on that directive until after 2020, the directive itself is binding and the domestic legislation must be interpreted consistently with it (as in Swift). However, the post-2020 CJEU decisions are not binding. So, the County Court remains bound by any previous binding domestic authorities on the directive from the High Court upwards.
"[A court] decision binds [the same] court unless there is a later decision of a judge of equal rank in conflict with it. Where there are two conflicting decisions of [equal] courts… the later decision is to be preferred, provided it was reached after consideration of the earlier decision, unless the third judge is convinced that the second was wrong in not following the first…[I]t is not enough for third judge to conclude that the second judge was wrong in some unimportant particular; the third judge must be convinced that the second was wrong in not following the first."
I shall adopt the same approach to the County Court cases which I review later.
The 2015 Directive and relevant CJEU Cases on Art.12(2)
"It is necessary to consider not only [the directive's] wording but also its context and the objectives pursued by the rules of which it is part."
Indeed, a similar formulation (with the addition of 'and where appropriate, its origins') was adopted in the first CJEU case I have found on the 2015 Directive in January 2023: KT v FTI Touristik [2023] 3 CMLR 9 at [19] (albeit it did not concern the relevant provision in this case: Art.12 2015 Directive). As Explanatory Note para.111 to s.6(3) EUWA quoted above explains, this interpretative method takes what English judges would call a 'purposive approach' (which the CJEU calls a 'teleological approach'), including consideration of EU pre-legislative papers called in French 'travaux preparatoires'. Whilst the Supreme Court in R(O) stressed that in domestic statutory interpretation, such 'external aids' (e.g. in domestic law Explanatory Notes and Law Commission reports) are subordinate to the statutory text, the CJEU interpretative approach is less 'hierarchical'. This may be because, unlike in domestic law, in EU legislation there are lengthy and detailed 'recitals' in directives themselves: setting out their context, purpose or summarising their effect.
"Travellers should also be able to terminate the package travel contract at any time before the start of the package in return for payment of an appropriate and justifiable termination fee, taking into account expected cost savings and income from alternative deployment of the travel services. They should also have the right to terminate the package travel contract without paying any termination fee where unavoidable and extraordinary circumstances will significantly affect the performance of the package. This may cover for example 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 agreed in the package… contract." (Mr Riley's underline)
"…[I]t is not always easy to distinguish between consumers and representatives of small businesses or professionals who book trips related to their business or profession through the same booking channels as consumers. Such travellers often require a similar level of protection…. In order to avoid confusion with the definition of the term 'consumer' used in other Union legislation, persons protected under this Directive should be referred to as 'travellers'."
Mr Riley also relied on Recitals 5 and 20 on the objectives of the 2015 Directive:
5. [Under the EU Treaty]….the internal market is to comprise an area without internal frontiers in which the free movement of goods and services and the freedom of establishment are ensured. The harmonisation of the rights and obligations arising from contracts relating to package travel and to linked travel arrangements is necessary for the creation of a real consumer internal market in that area, striking the right balance between a high level of consumer protection and the competitiveness of businesses.
20. This Directive should be without prejudice to national contract law for those aspects that are not regulated by it."
"1. The purpose of this Directive is to contribute to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States in respect of contracts between travellers and traders relating to package travel
..3…..the following definitions apply: (12) 'unavoidable and extraordinary circumstances' means a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken'….
12(1) Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. The package travel contract may specify reasonable standardised termination fees based on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services. In the absence of standardised termination fees, the amount of the termination fee shall correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services. At the traveller's request the organiser shall provide a justification for the amount of termination fees.
(2) Notwithstanding paragraph 1, the traveller shall have the right to terminate the package travel contract before the start of the package without paying any termination fee in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination. In the event of termination of the package travel contract under this paragraph, the traveller shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.
(3) The organiser may terminate the package travel contract and provide the traveller with a full refund of any payments made for the package, but shall not be liable for additional compensation, if…(b) the organiser is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package.
(4) The organiser shall provide any refunds required under paras. 2 and 3 or with respect to para.1, reimburse any payments made by or on behalf of the traveller….minus the appropriate termination fee. Such refunds or reimbursements shall be made to the traveller without undue delay and in any event not later than 14 days after the…contract is terminated…."
"It follows from the text of Art.12(2) that personal circumstances not related to events at the travel destination should not give a termination right with a full refund, so there seems no need to specify this further. If further text is added, this would have to be drafted carefully to avoid conflicts with the Directive, given that certain personal circumstances might be relevant when assessing the impact of unavoidable and extraordinary circumstances occurring at the travel destination on the performance of the package, e.g. the fact that pregnant women may be seriously affected by..the Zika Virus."
"While, for the purposes of the termination of a package travel contract, the classification of a given event as a situation falling within the concept of 'unavoidable and extraordinary circumstances', within the meaning of that directive, necessarily depends on the specific circumstances of the particular case and, in particular, on the travel services specifically agreed upon and the consequences of that event at the intended destination, the fact remains that a global health crisis such as the COVID-19 pandemic must, as such, be regarded as capable of falling within the scope of that concept."
Both this point and the consumer protection objective of Art.12 were re-iterated by the CJEU in RTG v Tuk Tuk Travel [2024] 2 CMLR 21 in September 2023. It held Art.5 2015 Directive required a traveller to be told on contracting of their Art.12(2) right – stated in the simple standard terms at Annex 1 Part A of the Directive:
"Travellers may terminate the contract without paying any termination fee before the start of the package in the event of exceptional circumstances, for instance if there are serious security problems at the destination which are likely to affect the package." (my italics)
Whilst I did not hear argument on RTG I touch on this provision again briefly below. Que Choisir was cited again by the CJEU in MD v Tez Tour [2024] Bus LR 1024 and QM v Kiwi Tours [2024] Bus LR 1045, both in February 2024 (to which I referred Counsel), then GF v Schauinsland [2025] Bus LR 508 on 4th October 2024.
(a) (Answer 1) It was unnecessary for a traveller to show there had been official travel guidance in order to prove 'unavoidable and extraordinary circumstances at the destination or its immediate vicinity' (which I call a 'destination UEC'), but (Answer 4) it could not include a situation already known when booking.
(b) (Answer 2) For such a 'destination UEC' to 'significantly affect the performance of the package of carriage of passengers to the destination' (which I call 'significant effect'), it is unnecessary to show performance or carriage was prevented or impossible, but only 'significant effects' from the perspective of an average traveller. (Answer 3) But personal factors relating to the individuals - and effects experienced at the departure point or en route - can also be relevant.
At [31] and [33], the CJEU in MD stressed that a 'destination UEC' was assessed objectively, adding at [69] and [71] that 'significant effect' was also objective:
"[69] …[I]n accordance with the objective nature of those effects…it is not sufficient for the traveller concerned, when he or she wishes to exercise his or her right to terminate his or her package travel contract without paying a termination fee, to rely on purely subjective assessments or fears….
[71]….[I]t is necessary to take the perspective of an average traveller who is reasonably well-informed and reasonably observant and circumspect, following,....other areas of EU law relating to consumer protection…"
"[31] [T]hat assessment must be based on a prediction as regards the likelihood the [destination UEC] relied on by the traveller concerned will have consequences significantly affecting the performance of the package.
..[32] [T]o assess the probability and significance of those consequences, it is appropriate to view matters from the perspective of the average traveller who is reasonably well informed and reasonably observant and circumspect, in the sense that such a traveller could reasonably take the view the [destination UEC] relied on by the traveller concerned would probably have consequences significantly affecting the performance of his or her package or for the transfer of passengers to the travel destination."
In QM at [42] (later analysed by HHJ Malek in Our Lady), Judge Prechal added:
"[The 14-day period in Art.12(4)] suggests the organiser should, in principle, be in a position to determine, immediately after the termination.. without waiting for subsequent developments…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…refund."
"[52]….the simple fact the traveller declared that he still wished to proceed with that trip despite the risks identified is irrelevant...whether the organiser was prevented from performing the contract must be examined objectively..
[55] In that context, it is ultimately irrelevant whether or not the situation prevailing on the date of a planned trip would have allowed performance.."
(1) The 2015 Directive, reflected in Recital 5, balances a high level of consumer/traveller protection and business competitiveness. But the CJEU regularly emphasises the importance of traveller protection (e.g. in Art.1 / Que Choisir at [50]) and for Art.12(2) (MD at [61]/[78]; QM at [43]-[45]).
(2) Art.12(2) requires objective proof of 'unavoidable and extraordinary circumstances' at the destination or its immediate vicinity. However, a global health crisis such as the COVID Pandemic 'must as such be regarded as capable of falling within the scope of' a 'destination UEC' if it is occurring at the destination as at cancellation, whether or not there are travel or other official restrictions there. (These have evidential value, but are not definitive either way, but are otherwise for the national court to determine) (See Que Chosir at [45]; MD at [37]-[43], [86] and [94]; GF at [35]-[45]).
(3) Whether there is such a 'destination UEC' must be assessed as at the date of cancellation itself, irrespective of events which then followed, or the benefit of hindsight as to whether the trip could have later actually gone ahead on the planned date (QM at [26]-[48]; GF at [55] – also see MD at [64]-[65]).
(4) Whether that 'destination UEC' at that time 'significantly affects the performance of the package or the carriage of passengers to the destination' is also assessed at the date of cancellation without hindsight of later events, but prospectively and objectively. Whilst the package holiday need not be objectively impossible (MD at [48], [64-7]), it is appropriate to ask the question in QM at [32]: 'whether an average traveller, who is reasonably well informed and reasonably observant and circumspect, could reasonably take the view that the unavoidable and extraordinary circumstances relied on by the traveller concerned would probably have consequences significantly affecting the performance of his or her package or for the transfer of passengers to the travel destination' (see also GF at [54]).
(5) Whether the 'destination UEC' 'significantly affects the performance of the package or carriage of passengers to the destination' can take into account the circumstances on cancellation in the departure state or en route; and/or objectively proven personal circumstances of travellers (MD at [62]/[94]).
(a) Firstly, what ultimately matters is the language of Art.12(2), not the language of Recital 31. As noted, the wording of Art.12(2) is in the present tense: covering destination UECs 'significantly affecting performance of the package'. That said, as the CJEU said in QM at [31] (and indeed in MD at [71]), as that is to be assessed on cancellation, it involves prospective assessment (as does 'will'). So, Recital 31 may simply be giving a core example of Art.12(2), not defining it.
(b) Secondly, assessing Art.12(2) in its context, as the CJEU said in QM at [41], that prospective assessment must be practical, so the organiser can decide within 14 days (possibly still before the package start date) whether the traveller must pay a termination fee or not. Requiring the traveller and the organiser to decide whether a 'destination UEC' will (as opposed to probably would) 'significantly affect' the upcoming package would be very difficult – neither party has a crystal ball. It would also undermine the difference in wording between Arts.12(2) 'significant effect' and 12(3) 'prevented' (see GF). By contrast the QM test resembles the basic explanation of 12(2) in Annex 1 Part A: i.e. 'likely'.
(c) Moreover, to require the traveller to predict before a package is due to start whether it 'will' be significantly affected' by a current 'destination UEC' would undermine the consumer protection objective of Art.12(2). Indeed, it does not strike a fair balance between consumer protection and business competitiveness, since businesses will probably have better information on this than travellers do.
By contrast, the QM test, whilst rather glossing the language of Art.12(2), properly reflects its context and objective and I therefore accept proposition (4) above.
(a) Firstly, as the CJEU observed in MD at [31], the wording of Art.12(2) focusses on a 'destination UEC', not on official announcements or decisions. Indeed, as the CJEU said in GF at [40], the final version of the 2015 Directive edited out the original proposal for a 'destination UEC' to be deemed where there was official advice against travel to a destination, so this requirement was dropped.
(b) Secondly, Art.3(12) defines 'unavoidable and extraordinary circumstances' as a situation beyond a party's control where consequences cannot have been avoided even with all reasonable measures. As the CJEU said in MD at [33], travel guidance is in response to a UEC like COVID (see Que Choisir at [45].
(c) Thirdly, as the CJEU said in MD at [40], requiring travel warnings from a traveller's home state, or the destination state, which may not yet exist or be in a foreign language, would undermine the traveller protection objective of Art.12(2). Again, it would also not strike a fair balance with competitiveness, since travel companies are more likely to have this information than travellers.
I therefore accept proposition (2) above. That illustrates all five propositions.
(a) On wording, as HHJ Salmon said in John Masefield at [21], there are no words requiring a causal link between those 'conditions precedent' and cancellation. Mr Riley accepted the phrase 'in the event of' is not the language of causation in the sense that 'the conditions caused the traveller to terminate'. It is the language of precondition: 'provided the conditions precedent are made out, a right to terminate exists' as HHJ Salmon put it at [24]. Indeed, the CJEU in QM at [27] referred to 'destination UEC' and 'significant effect' as a 'condition'. One could debate whether they are one 'condition' or two, but they are clearly expressed to be conditions for the exercise of a right, not causes for its exercise.
(b) On context, Art 12(2) is an exception to Art.12(1), which gives an unfettered right of cancellation with a fee. So, what engages the extra right in Art.12(2) is the two objective preconditions of a 'destination UEC' and 'significant effect'. A travel company is well-placed to determine whether those two conditions objectively apply at the destination at the time of cancellation (indeed as it is their business, better-placed than a traveller), so as to require a refund within 14 days under Art.12(4). But the company cannot easily investigate in 14 days whether those conditions were the cause of cancellation by a particular traveller.
(c) This 'condition not causation' approach has a fairer balance between traveller protection and business competitiveness. It is 'swings and roundabouts' that the traveller posited by HHJ Malek in Our Lady at [33] who cannot go on a ski trip after earlier breaking a leg still gets a full refund due to a 'destination UEC' 'significantly affecting' the package (e.g. extreme weather in Switzerland); but the business traveller whose conference next to Geneva airport is unaffected by that 'destination UEC' cannot. As the CJEU said in MD, the issue is whether the 'destination UEC' has a significant effect on the particular package.
(a) I repeat the material wording of Art.12(2) which I italicise and annotate:
"…[T]he traveller shall have the right to terminate the…contract…without paying any termination fee in the event of [i] unavoidable and extraordinary circumstances occurring at the place of destination...and [ii] significantly affecting the performance of the package, or…. carriage of passengers to the destination. In the event of termination of the package travel contract under this paragraph, the traveller shall be entitled to a full refund…".
Just as there are no 'causation words' in Art.12(2), there are no 'reason words' either (e.g. 'by reason of', 'pursuant to' or 'relying on' preconditions [i] and [ii] - nor on my limited French and Spanish, in those versions c.f. Que Choisir [28]). The CJEU in QM at [32] spoke of a traveller who 'relied' on a UEC objectively - not as his subjective reason. Indeed, in MD at [69] the CJEU stressed that a traveller could not 'rely on purely subjective assessments or fears'. That is inconsistent with an 'actual reasons test' and as HHJ Malek said in Our Lady at [36], the CJEU in QM did not suggest a 'stated reasons test'. Whilst there are no subjective 'reason words' in Art.12(2), the objective phrase 'in the event of' is used twice. Whilst Mr Riley focusses on 'termination under this paragraph', if there were a 'reasons test', surely it would be worded in the active not passive voice (e.g. 'If a traveller terminates …[by reason of / pursuant to] this paragraph, they are entitled to a refund'). In its context, 'in the event of termination…under this paragraph' just means a termination 'falling under' that paragraph i.e. one meeting the two Art.12(2) preconditions. Indeed, requiring such terminations (falling) 'under this paragraph' also to be for any actual or stated reason to qualify for a full refund would actually be inconsistent with the last quoted sentence in Art.12(2). There is also no hint of any 'reasons test' in Recital 31.
(b) Contextually, just as for an objective 'causation test', a subjective 'actual reasons' test would be impractical for travel companies – how could they divine a traveller's 'actual reason' in 14 days ? The contextual argument for a 'stated reasons test' is that travellers need to state Art.12(2) applies so companies know it not Art.12(1) is engaged. But as discussed, companies are far better-placed than travellers to assess within 14 days whether objectively the two Art.12(2) preconditions were met at the destination for the package, whatever travellers say. If so, a company must refund; if not, it may charge. Again, this works on a 'swings and roundabouts' basis. If a refund turned on whether Art.12(2) was raised 'expressly' (or worse, 'impliedly'), it would only cause dispute and delay.
(c) Indeed, if a traveller only got a full refund when the two Art.12(2) preconditions applied if that was the reason (actual or stated) for their cancellation, this would not fairly balance business competitiveness and traveller protection, as it would assume that travellers are aware of that right. Whilst Art.5 2015 Directive does require travellers to be told of their Art.12(2) right (RTG), by analogy to Swift with a different directive, making a consumer right practically dependent on business notification of it risks undermining the 2015 Directive's traveller protection objectives, for no legitimate business competitiveness justification.
The 2018 Regulations and the County Court Cases
"2.1 [The purpose of] this instrument [is to] implement the EU's 2015 Package Travel Directive and replace..the existing Package Travel Regulations…derived from the 1990 Package Travel Directive….
7.7 Our approach to implementation is light-touch in order to impose minimal additional burdens on business, whilst enabling the UK to comply with the requirements of the Directive. Where possible [its] provisions have been transposed using a copy-out approach. This means that in general provisions appear in this instrument as they were set out in the Directive."
"(1) The provisions of this regulation are implied as a term in every package travel contract.
(2) A traveller may terminate the package travel contract at any time before the start of the package.
(3) Where the traveller terminates the package travel contract under paragraph (2), the traveller may be required to pay an appropriate and justifiable termination fee to the organiser.
(4) The package travel contract may specify reasonable standard termination fees based on: (a) the time of the termination of the contract before the start of the package; and (b) the expected cost savings and income from alternative deployment of the travel services.
(5) In the absence of standardised termination fees, the amount of the termination fee must correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services.
(6) The organiser must provide a justification for the amount of the termination fee if the traveller so requests.
(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.
(8) Where the package travel contract is terminated under paragraph (7), the traveller is entitled to a full refund of any payments made for the package but is not entitled to additional compensation."
Therefore, as Mr Riley rightly submitted, Reg.12(7) (and so Reg.12(8) too) are an exception to the general rule under Regs.12(3)-(6) that whilst the traveller has an unfettered right to cancel before the start of the package, they can be charged a cancellation fee, either under the contract (Reg.12(4)), or consistent with Reg.12(5).
"'unavoidable and extraordinary circumstances' means a situation: (a) beyond the control of the party who seeks to rely on such a situation for the purposes of regulation 12(7), 13(2)(b) 15(14)/(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…"
So, the definition of 'unavoidable and extraordinary circumstances' is the same as in Art.3(12) 2015 Directive, but also spelled-out by 'signposts' to where it applies in the 2018 Regs. Yet what counts as such a 'UEC' in those contexts varies. An unavoidable computer failure may be a UEC for a booking error under Reg.28, but not for non-conformity of the package under Reg.16. Most relevantly, a 'UEC' also justifies cancellations by the organiser under Reg.13(2)(b) and Reg.13(3), enabling it to cancel a package with a full refund of payments but no further liability:
"[If it] is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package."
This is different from Reg.12(7) 'significantly affect', so suggests a different test, as stated by the CJEU in GF (though saying neither test required 'impossibility').
(a) Firstly, as the cause of action arose before the end of 2020, as with Lipton, EUWA preserves the Appellant's crystallised cause of action as it was before I/P Completion Day at the end of 2020. So, the 2015 Directive still has 'indirect effect' (Swift) (especially as Reg.12(7) has not been amended since 2020). So, as far as possible, Reg.12(7) must be interpreted consistently with Art.12(2).
(b) Secondly, even leaving aside 'indirect effect' and adopting a domestic approach to interpretation as explained in R(O), the Explanatory Memorandum illustrates that the purpose of the 2018 Regs is to implement the 2015 Directive. So, Reg.12(7) should be interpreted consistently with Art.12(2) if consistent with Reg.12(7)'s language - as said in R(O), it has primacy in domestic interpretation.
(c) Thirdly, not only is the language of Reg.12(7) consistent with its purpose of implementing Art.12(2) 2015 Directive, for the reasons discussed above in relation to Art.12(2), it is the natural meaning of the language in its context.
So, my provisional view is the five propositions at paragraph 49 of this judgment from the CJEU cases on Art.12(2) hold good for the similarly-worded Reg.12(7) implementing it, in summary: (1) a balance of competitiveness with a high level of consumer protection, (2) one precondition of an objective 'destination UEC' for which official announcements are evidential not determinative; (3) to be assessed as at the cancellation date not in hindsight; (4) a second precondition that this must also 'significantly affect performance of the package or carriage of passengers to the destination', which is assessed prospectively at cancellation date and objectively using the test of whether the average traveller could reasonably conclude it would probably have that consequence; (5) in assessing that, circumstances in a departure state and personal circumstances of the travellers are relevant. Moreover, as also discussed, I do not consider Reg.12(7) sets either a 'reasons test' or 'causation test'.
(a) The first case was Dennison v We Love Holidays (October 2021) where a traveller cancelled a package at the very start of the Pandemic, not because of any 'destination UEC' in the Canary Islands at the time, but simply due to the UK requirement to quarantine on her return. It was held on appeal this did not fall within Reg.12(7), since at the date of cancellation, on the facts the package was not 'significantly affected'. On the information I have, I respectfully agree.
(b) The second case was Braithwaite v We Love Holidays (Nov. 2021) where a traveller cancelled a package to Croatia in August 2020 due to UK Government travel advice, which the District Judge held itself amounted to a 'UEC'. However, that UEC was not at the 'destination' as required by Reg.12(7) (and Art.12(2)), so on the limited information I have, this decision is not persuasive.
(c) The third case was Kirk v We Love Holidays (March 2022), where the pre-booked hotel on Kos closed, the traveller was offered a 'like-for-like' alternative nearby, but cancelled due to the Pandemic. HHJ Howells held that on proper interpretation of Reg.12(7) 2018 Regs, the 'destination' was not the hotel itself as the DJ had found, but the resort (or possibly the island of Kos). On the evidence, with no travel ban to Kos at the time and flights still operating, there was no 'destination UEC', nor 'significant change' to the package under Reg.11 2018 Regs. On the information I have, I respectfully agree with HHJ Howells.
(d) The fourth was Patel v P&R Travel (2022), where a traveller cancelled in April 2020 a package booked for July 2020 to Tanzania via Uganda. On cancellation, there were no international flights to or from Uganda and the UK was in lockdown, but both were under review. The District Judge held that cancellation was too early. But it is unclear from the brief summary why the inability to fly did not by cancellation 'significantly affect carriage of passengers to the destination'. On the limited information I have, this decision is not persuasive.
"If there comes a stage either eight weeks, ten weeks or longer before departure when a reasonably intelligent individual with common sense concludes that there is no reasonable prospect of the trip going ahead, or if it does, it will be significantly different to that contemplated or contracted for, a traveller should not be expected to wait two days before travel to exercise their right to terminate just in case something changes."
"If…the court was required to delve into the [cause or] subjective reasons for cancellation attributable to the traveller, that would serve only to add: (a) an additional hurdle before s/he could enforce his/her rights, (b) an additional gloss to the statutory wording and (c) complexity and length to any proceedings which required the determination of claims under Reg.12."
(a) In its third ground of appeal (which HHJ Salmon addressed at [11], [44] and [45]), the school complained the DDJ had not addressed conditions at the destination in France at the time of cancellation. However, from HHJ Salmon's judgment at [8], the school had relied only on UK conditions and restrictions.
(b) HHJ Salmon also rejected the school's second ground of appeal (at [34]-[43] that it did not have to prove a UEC at the destination if there were one at the point of departure. As HHJ Salmon pointed out, the CJEU in Que Choisir had only said that if COVID affected the destination, as COVID was a UEC, it did not matter that it also affected the departure state. HHJ Salmon agreed with Recorder Craven in Brynmawr that conditions in the UK are not relevant to whether there was a 'destination UEC'. Whilst HHJ Salmon disagreed with HHJ Beech's analysis in Team4Travel if she had said otherwise, as noted, I only interpret her as saying that conditions in the departure state can be relevant to 'significant effect' (consistently with MD, although not cited). So, I agree with HHJ Salmon at [41(4)] that a traveller cannot prove Reg.12(7) applies based only on circumstances at the point of departure. As that was the school's case in John Masefield, I respectfully agree with HHJ Salmon's dismissal of its appeal.
(c) That result followed despite the fact HHJ Salmon agreed with the school that Reg.12(7) does not include a 'causation test'. I have explained at paragraph 54 above why I also consider a 'causation test' is inconsistent with the context and wording of Art.12(2) 2015 Directive, not least as there are no 'causation words', as HHJ Salmon himself said of the near-identical Reg.12(7) 2018 Regs. Moreover, as Reg.12(1) makes all Reg.12 an implied term in the package travel contract, I also agree with HHJ Salmon's classic English contract law analysis why Reg.12(7) has no 'causation test' in John Masefield at [21] and this at [23]:
"It is trite law that in a case of anticipatory breach a party can accept the repudiation of the contract even if, for example, it is delighted so to do because it has, for example, made a bad bargain. The motivation for accepting the repudiatory breach is irrelevant to the ability of the party to accept the repudiation where the circumstances allow them so to do."
(He cited Vitol v Norelf [1996] AC 800 (HL)). Although Reg.12(7) is less about anticipatory breach and more of a classic 'force majeure' clause (see Que Chosir [54] describing Art.12(2)), the same is true of English contract non-breach termination clauses generally: see Chitty on Contrasts (2025) at para 26-052. Even if I am wrong and Reg.12(7) did involve a 'causation test', the appropriate causation approach in the context of COVID would not be 'but for causation' but a 'multiple concurrent causes' approach as with COVID triggering business interruption insurance in FCA v Arch Insurance [2021] AC 649 (SC) at [171]-[191]: essentially the same approach taken by Recorder Craven in Brynmawr.
"(3) Any….(b) refund required pursuant to (i) regulation 12(8)…must be made to the traveller without undue delay and in any event not later than 14 days after the package travel contract is terminated."
As Reg.14 is also implied into the package contract under Reg.14(1), it is an implied term that a refund required under Regs.12(7)-(8) must be paid within 14 days. So, HHJ Salmon thought to make this effective, Reg.14 implied a 'stated reasons test':
"[28] How does the organiser know that the terminating party is terminating because they believe that the conditions precedent to allow termination are in existence, in other words, that it is expressly or impliedly, by how the contract is terminated indicating they are seeking to rely upon Reg.12(7) ?
[29]..Regulation 14, which itself becomes an implied term in the contract, means it is necessary for those cancelling the contract to communicate they are seeking to rely expressly or impliedly on Regulation 12(7)."
The considered view of HHJ Salmon, with his vast experience of the County Court, is entitled to great respect. But on this, I respectfully prefer HHJ Malek's analysis in Our Lady which HHJ Salmon did not have the benefit of seeing, on three grounds:
(a) Statutory wording is predominant in domestic interpretation: R(O) at [29], but the Directive is also relevant as an 'external aid' (R(O) at [30]) - irrespective of 'indirect effect'. In splitting Art.12(2) into Regs.12(7) and (8), Parliament re-arranged its structure by moving reference to a fee-free right to cancel to follow the basically identical two 'preconditions' ('and significantly affecting' became 'which significantly affects'). The last sentence of Art.12(2) then became Reg.12(8) with very minor adjustments ('In the event of' became 'where' and 'under this paragraph' became 'under paragraph (7)'). Yet even with these changes, Parliament still did not include any 'reason words' and has not amended Regs.12 or 14 since Brexit at the end of 2020 to do so. Therefore, as explained at paragraph 55(a) above relating to Art.12(2), the wording of Regs.12(7) and (8) 2018 Regs does not contain and indeed is inconsistent with a 'reasons test'. Indeed, HHJ Salmon did not rely on Reg.12, but on Reg.14. Yet nothing in Reg.14 explicitly requires a traveller to do anything – let alone to give a 'stated reason' for cancellation. Reg.14 is a duty on the travel company, if Regs.12(7) and (8) apply, to refund payments within 14 days of cancellation.
(b) Instead, HHJ Salmon suggested a 'stated reasons test' was implicit in Reg.14 to make it practical. He suggested a travel company needed to know within 14 days the traveller terminated 'because they believe(d) the conditions precedent' existed. So, the 'stated reasons test' really merges with an 'actual reasons test'. But these are subjective and Reg.12(7) is objective like Art.12(2) (see paragraph 55(a) above). Indeed, as HHJ Salmon said in rejecting a 'causation test' at [21]:
"It is a fundamental tenet of English contract law that one does not normally deal with parties' subjective intentions but rather looks at matters objectively. This provides an element of certainty. The decision to terminate a contract can be multifaceted, with a variety of competing concerns. To effectively require a court to delve into the complex web of the subjective intention of the person terminating the contract is time-consuming and would lead to substantial litigation."
However, these issues would also complicate an 'actual reasons test' (does the traveller have to prove the reason stated was their genuine reason ?); and also HHJ Salmon's 'stated reasons' test itself (how 'expressly' or 'impliedly' must the reason be 'stated' ?) Travellers may well give a reason for cancellation, but are less likely to refer expressly or impliedly to Reg.12(7). As discussed at paragraph 55(c) above, they may not even be aware of it. However, there is already a right to cancel at any time before the package under Reg.12(1) with a termination fee. The additional right in Regs.12(7)/(8) is really to cancel without termination fee and with a refund, if the two Reg.12(7) preconditions apply. As discussed at paragraph 55(b) above, whatever the traveller said, a travel company is well-placed to decide whether conditions at the destination and their effect on the package or carriage met the two preconditions at the time of cancellation within 14 days. If they applied, there must be a refund without fee (but no additional compensation). If they did not apply, there need not be. So Regs.12(7)/(8) are a company's conditional duty to refund, not a traveller's onus to request it. This approach avoids all those problems with any 'reasons test'.
(c) Finally, similar English contract law points as HHJ Salmon made about the 'causation test' in John Masefield at [21] apply to the 'reasons test'. As HHJ Salmon said at [22], on anticipatory breach, in Vitol pg.810-1 Lord Steyn said:
"[A]cceptance of repudiation requires no particular form: a communication does not have to be couched in the language of acceptance, it is sufficient that the communication or conduct clearly and unequivocally conveys to the repudiating party the aggrieved party is treating the contract as an end."
So too Reg.12(7): if there is an unequivocal termination, English contract law does not require communication of any reason for it. The same is true of non-breach termination clauses: Chitty on Contracts (2025) at p.26-052 cites Looney v Trafigura [2011] EWHC 125 (Ch) where an express termination clause was not subject to any condition of 'reasonable grounds'. Looney partly relied on AG Belize v Belize Telecom [2009] 2 All ER 127 (HL), where Lord Hoffmann said at [16] that a Court has no power to improve upon an instrument (e.g. a statute) to make it more reasonable, but this is just what the 'reasons test' purports to do. Of course, I understand HHJ Salmon's view, but I respectfully disagree with it.
Therefore, I do not accept that Regs.12 or 14 2018 Regs pose any 'reasons test'.
(1) Where was the 'place of destination or its immediate vicinity' ?
There are few cases on this often undisputed issue, but one is Kirk where HHJ Howells clarified 'the destination' is not the accommodation itself.
(2) Whether at that destination at the time of cancellation there were occurring 'unavoidable and extraordinary circumstances' (i.e. a 'destination UEC') ?
Here, conditions after the cancellation date, or on it at the point of departure, are irrelevant. But, if on that date without hindsight the destination was affected by COVID, that establishes a 'destination UEC' irrespective of official guidance, which is only evidential not determinative either way (Que Choisir, MD, QM, Brynmawr, Our Lady and John Masefield).
(3) Did the 'destination UEC' at cancellation 'significantly affect' performance of the particular upcoming package (or passenger carriage to destination) ?
This issue is again to be assessed objectively at the cancellation date, but unlike (2), it can take into account circumstances personal to the travellers, or at point of departure or en route. Moreover, whilst at time of cancellation it is also prospective, it does not require the 'destination UEC' to 'prevent' performance of the package or carriage to the destination as with Reg.13; or that it 'will' significantly affect either. Whilst it is a gloss on the statutory wording, so not an error of law if not quoted, the most helpful test for (3) is that in QM: whether an average, reasonably well-informed, observant and circumspect traveller, could reasonably take the view that the unavoidable and extraordinary circumstances relied on by the actual traveller would probably have consequences significantly affecting the performance of his or her package, or for the transfer of passengers to the travel destination. Legally, this does not require any 'reasons test' or 'causation test', or indeed cancellation within any set period before the package starts. However, evidentially if the reason for cancellation is entirely unrelated to any 'significant effect' of the 'destination UEC', or cancellation is long before the package, that may weaken a traveller's argument for an objective 'significant effect' (i.e. a 'you say this now but did not think this then' point) (MD, QM, Brynmawr, Cledford, Team4Travel, Our Lady, John Masefield).
Conclusions
"14. It is clear that in order to rely on Reg.12(7) the claimants must satisfy the court that the event of unavoidable and extraordinary circumstances occurred at the place of destination or its immediate vicinity: that is, Barcelona; and that it significantly affected the performance of the package for [sic] the carriage of passengers to the destination and only in those circumstances is a termination fee not payable….
20. Is it fatal to the claim that the claimants have not produced evidence of the travel restrictions in Barcelona at the time or the guidance being provided by the Spanish Government ? We are all aware now, of course, that restrictions continued for months, not weeks, both here and in the rest of Europe, but the issue must be what were the circumstances as at cancellation on 1st April ? What was known at that point in time ?
21. The defendants argue this is the basis of Reg.12(7) because of striking the balance between fairness to the consumer and to the commercial business, hence the reason when the Regulation was drafted it was determined that the extraordinary circumstances must occur at the destination rather than [including] the place of departure…
23. It is reasonably clear….that it was a combination of factors that led the school to the decision to cancel the contract….It was partially the guidance being given by the Government and by ABTA. It was partially the fact that [the children] were not in school; and it was partially because the Pandemic was simply not subsiding as it had been hoped it might have done.
24. Having considered the wording of the regulation and the background to it, it is clear it is a protection for consumers in circumstances where a package provider is unable to provide the package solely because of something arising at the destination, not where circumstances at home prevent the travel. I have taken this into account as it seems unlikely when these regulations were drafted a global pandemic was in contemplation.
25. My conclusion is that the claimant's evidence falls short of satisfying the court on the balance of probabilities that Reg.12(7) could be relied upon as at the date of cancellation of the contract; and that common knowledge, particularly that gained with hindsight, are in the absence of detail applicable to the particular destination, insufficient to support the claim. In all the circumstances therefore and taking into account all the evidence that I have read and heard today, the claim must be dismissed."
For ease, I also repeat the DDJ's reasons for refusing permission to appeal:
"The Claimant failed to satisfy the Court that Reg.12(7) [2018 Regs] applies as they failed to produce evidence that the 'unavoidable and extraordinary circumstances' occurred at the 'place of destination'. Although this was a global pandemic, the restrictions pertaining in the destination in Spain were not evidenced and the Court concluded that the decision to cancel the trip was a consequence of government advice in the UK and pessimism as to whether the trip could proceed. The Defendants contended that at the time of the cancellation the booked flights remained scheduled and the hotel would be open and the Claimants did not challenge this."
Ground 1
"We won't be going. I don't think we will be in school then [on 11th May]. Spain is in a bit of a mess, more so than here."
In context, that is clearly Mr Robbins for the Appellant explaining the cancellation by what he called the 'mess' in Spain at the time with COVID (i.e. the 'destination UEC') and that they 'won't be going as they will not be in school' (i.e. the 'significant impact' on the package due to the combination of that situation in Spain and the closure of schools in the UK) ? So, Reg.12(7) was impliedly raised anyway. However, as I said, I do not agree a 'stated reasons test' is required by Reg.12(7).
Ground 2
"We won't be going. I don't think we will be in school then [on 11th May]. Spain is in a bit of a mess, more so than here."
As I have said, this satisfied the John Masefield 'stated reason test' even were it required (which I do not accept). In any event, the QM objective 'average traveller' test was unquestionably satisfied. Whilst it does not legally matter that the school were later proven correct (as hindsight is not the issue), what Mr Robbins said on 1st April was not hindsight, it was unimpeachable foresight. Indeed, at the stage of analysing 'significant effect', conditions in the UK and personal circumstances of the travellers (i.e. primary school children on a sightseeing trip) are also relevant: MD/QM. As HHJ Beech said in Team4Travel, if a traveller reasonably takes the view that there is no reasonable prospect of a trip going ahead or if it does it will be significantly different, they do not need to wait to cancel. Mr Robbins was entitled not to wait to cancel. Reg.12(7) plainly applied on the primary facts before and found by the DDJ and so the appeal must be allowed - and so the claim succeeds. So, I will enter judgment for the Appellant plus interest at the agreed rate.