Abta contracts with travel agent's customer

LAW REPORT 23 November 1995

Bowerman and another v Association of British Travel Agents Ltd; Court of Appeal (Lord Justice Hirst, Lord Justice Waite and Lord Justice Hobhouse); 21 November 1995

The notice displayed by tour operators who were members of Abta describing Abta's scheme of protection against the financial failure of its members would be understood by the ordinary member of the public as importing an intention by Abta to create legal relations with customers of Abta members.

The Court of Appeal (Lord Justice Hirst dissenting) allowed an appeal by the plaintiffs, Emma Bowerman and Stephen Wallace, from Mr Justice Mitchell's decision that the defendant, Abta, was not liable to reimburse the plaintiffs the costs of insurance cover paid for a lost holiday.

The first plaintiff, a school girl, and the second plaintiff, a teacher, were booked on a school skiing holiday with a tour operator who was an Abta member. Abta, a trade association of travel agents and tour operators, promoted its members by publishing how it protected the public from the risk of the agent's or operator's insolvency. The Abta notice displayed in the operator's office describing Abta's scheme of protection against the financial failure of its members, included words such as "Abta seeks to arrange for you to continue with the booked arrangement as far as possible and ensures that if you are abroad you will be able to return to the United Kingdom."

The operator became insolvent but the skiing holiday was arranged with another operator who received the Abta refund. However Abta's reimbursement did not include the holiday insurance premium paid by each party on the tour. The plaintiffs claimed from Abta a refund of the sum attributable to the insurance.

The judge decided that the Abta notice displayed at the tour operator could not be construed as a contractual offer to all customers of failed Abta tour operators to protect them financially and dismissed the plaintiffs' claim.

Edward Bailey (Mason Bond, Leeds) for the plaintiffs; Catharine Otton- Goulder (Bignalls) for Abta.

Lord Justice Hirst, dissenting and dismissing the appeal, said that the notice was descriptive rather than contractual in character.

Lord Justice Waite, allowing the appeal, said that a reader of the notice would be aware of the vulnerability of agents and operators in a highly competitive market where failures were not uncommon. The reader would know that those who wished to disclaim legal liability for public representations frequently said so.

The most striking feature of the notice was its remarkable variety of tone and language. In the end the case depended on impression. The notice, notwithstanding the bewildering miscellany it contained of information, promise, disclaimer and reassurance, would be understood by the ordinary member of the public as importing an intention to create legal relations with customers of Abta members.

Whenever a customer was induced to deal with one of its members by Abta's promises of protection, there was gain to the commercial purposes for which it was founded, providing clear consideration for those promises.

Lord Justice Hobhouse said that the Abta protection scheme was a scheme in relation to its members but it was a scheme of protection of the customers of Abta members. Abta was offering to protect the reader of the notice, the prospective customer. It was an inevitable inference that what Abta was saying was that it would do something for the customer if the member should fail financially.

It was a scheme whereby Abta was going to step in if the member failed and deal directly with the customer. The member of the public reading the notice would understand that Abta was undertaking to use its best endeavours, free of further expense to the customer, to procure that the customer was able to enjoy the holiday booked, or to see that the traveller abroad was brought back here. It was clearly an undertaking with a financial content.

A member of the public would understand that the notice would only apply to him if he chose to do business with an Abta member. It satisfied the criteria of a unilateral contract and contained promises which were sufficiently clear to be capable of legal enforcement.

If Abta wished to say that it was not making any promises, nothing could have been simpler than for it to have said so in the notice. For obvious commercial reasons, Abta did not choose that course.

Ying Hui Tan, Barrister

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Guru Careers: Graduate Resourcer / Recruitment Account Executive

£18k + Bonus: Guru Careers: We are seeking a bright, enthusiastic and internet...

Reach Volunteering: Chair and trustees sought for YMCA Bolton

VOLUNTARY ONLY - EXPENSES REIMBURSED: Reach Volunteering: Bolton YMCA is now a...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Day In a Page

Abuse - and the hell that came afterwards

Abuse - and the hell that follows

James Rhodes on the extraordinary legal battle to publish his memoir
Why we need a 'tranquility map' of England, according to campaigners

It's oh so quiet!

The case for a 'tranquility map' of England
'Timeless fashion': It may be a paradox, but the industry loves it

'Timeless fashion'

It may be a paradox, but the industry loves it
If the West needs a bridge to the 'moderates' inside Isis, maybe we could have done with Osama bin Laden staying alive after all

Could have done with Osama bin Laden staying alive?

Robert Fisk on the Fountainheads of World Evil in 2011 - and 2015
New exhibition celebrates the evolution of swimwear

Evolution of swimwear

From bathing dresses in the twenties to modern bikinis
Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine