Holiday claimants 'must take offers': Tourist apartment said to be dirty reveals limits of legal redress

LAST July Michael Walsh, from Dundonald in Northern Ireland, his girlfriend Glynis Saunders, and two friends travelled to Cyprus. They had all booked the holiday through a local travel agent.

When they arrived, Mr Walsh and Ms Saunders were appalled at the state of the apartment they had been allocated and believed that it was not really a one-bedroom flat, as there was only a sliding door to separate the sleeping area from the living room. In Mr Walsh's view, his apartment more closely resembled the resort's cheaper studio accommodation, while his friends had a better apartment.

However, the disappointment did not end there. According to Mr Walsh, the accommodation did not match the description in the brochure in several respects. The bedroom was so small that both single beds were pushed together. The toilet seat was broken, and the apartment was filthy - Mr Walsh said there were 'chocolate wrappers scattered around'. He added: 'One of the bedroom walls was covered with dirty footprints, and a pair of soiled Y-front underpants were lying in the corner covered with dust.' By contrast, their friends' apartment was clean and spacious.

The holiday was arranged with the London-based company Best Travel Limited, trading as Grecian-Cypriana. On the following day, Monday, the couple complained to Grecian-Cypriana's holiday representative, who spoke to the receptionist at the apartment complex. The couple were told that, as there was no other accommodation available, they could not be moved until Wednesday.

Mr Walsh and his girlfriend resolved to make the best of matters. They decided to clean up the room and get settled into the accommodation allocated. On the Wednesday, Mr Walsh was informed that the alternative accommodation was ready.

Mr Walsh, a service adviser to a car dealership, explained: 'We said 'no' as we had worked hard to get there and we did not want to waste any more time having to pack and unpack - yet again.'

On his return from holiday, Mr Walsh wrote first to the travel agent and then to Grecian-Cypriana claiming compensation for the disappointment and trauma, and a refund for the difference in price between studio and apartment accommodation.

Grecian-Cypriana, when contacted by the Independent on Sunday, said: 'On file we have a resort report wherein we were informed that both 26C and 27C (Mr Walsh's accommodation) were one-bedroom apartments, and that in 27C there was a sliding door between the bedroom and the rest of the apartment. It also states that there was a high standard of cleanliness . . . As stated in our customer's initial letter, our representative offered (Mr Walsh and his girlfriend) a change of accommodation, but this was not accepted as they did not want to have to pack and unpack again.'

Milenko Bisic, head of legal and customer services, said misunderstandings often arise because on the Continent two rooms means a bedroom and a lounge, while in this country people would expect two bedrooms plus a lounge.

'We would have offered alternative accommodation if it was available, but we would not have offered compensation because someone was disappointed, because we would not have been in breach of contract,' he said.

One common difficulty that holiday-makers face when making a claim for compensation is measuring the loss they have suffered. Where a breach of contract has occurred, the holiday-maker is under a duty to attempt to mitigate the loss. In such circumstances, this would include accepting suitable alternative accommodation if it was available.

Hugh Davy, a solicitor with the Exeter- based firm Anstey Sargent & Probert, comments: 'It is essential that disappointed holiday-makers raise their complaint with the tour representative at the earliest possible opportunity. A delay in making a complaint could seriously compromise a claim, and consequentiy reduce the tour operator's liability. The supplier of the service must be given an opportunity to remedy any shortcomings as soon as possible.

'Likewise, a holiday-maker cannot make a claim for the entire loss suffered if at some stage during the holiday the tour operator has made an effort to make good that loss.'

Usually, the law does not provide for an award of damages purely for an injury to feelings, annoyance or any social embarrassment caused by a breach of contract. Damages are only usually awarded for an identifiable financial loss.

The Court of Appeal has allowed an exception to this principle if a tour operator fails to provide the facilities that have been promised.

In one case, a holiday-maker booked a 14-day package holiday including hostel accommodation. On arrival, the holiday-maker claimed the tour operator provided only one night's accommodation. The following night the holiday- maker had to sleep on the beach and then in a cheap hotel, and in various campsites. In these circumstances, the disappointed holiday-maker was awarded pounds 250 by the court for general damages, mental distress, inconvenience and loss of enjoyment.

It is important that anyone who wishes to bring a claim resulting from an unsatisfactory holiday should keep a careful note of any additional expenses incurred. Receipts should also be retained to back up any claims for loss.

Holiday-makers can secure extra protection when they book by credit card. Under section 75 of the Consumer Credit Act 1974, credit card companies are jointly liable if the agreed goods or services costing at least pounds 100 are not provided. This provides the traveller with the option of seeking reimbursement from the credit card company as an alternative to the tour company. This right is particularly useful if the tour operator has gone out of business.

However, charge card issuers, such as American Express, are not bound by the same obligations although, in practice, they may be prepared to consider compensation as a goodwill gesture.

If a dispute cannot be settled, there is an arbitration process available for holiday-makers who book unsatisfactory holidays through tour operators or travel agents who are members of the trade organisation Abta.

Complaints are referred to the Institute of Arbitrators, and its decision is binding on both parties. If the travel agent or tour operator refuses to comply with the decision, the holiday- maker can go to court to enforce the decision.

Additional protection has been introduced by the Package Travel Regulations, which came into force in December 1992. These increase the liability tour operators must accept when holidays go wrong.

The effect of the regulations, subject to a number of exceptions and defences, is that tour operators must now accept liability for the actions of their suppliers, such as hoteliers, airlines and excursion organisers.

Additional protection is provided in cases where holiday companies go bust and holiday- makers either lose their deposit or find themselves stranded abroad.

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