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
  • Get to the point
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

Recruitment Genius: HR Manager

£36000 - £45000 per annum: Recruitment Genius: This is an exciting opportunity...

Ashdown Group: HR Manager Shared Services - Uxbridge, - 1 Year contract

£50000 per annum: Ashdown Group: HR Manager Shared Services - Uxbridge, Stock...

Recruitment Genius: Graduate Human Resource Officer and Executive Assistant

Negotiable: Recruitment Genius: This is an exciting opportunity to join one of...

Ashdown Group: HR Assistant (Events business) - Central Manchester - £20K

£18000 - £20000 per annum + Benefits: Ashdown Group: HR Assistant (Events busi...

Day In a Page

General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'
Sarah Lucas is the perfect artist to represent Britain at the Venice Biennale

Flesh in Venice

Sarah Lucas has filled the British pavilion at the Venice Biennale with slinky cats and casts of her female friends' private parts. It makes you proud to be a woman, says Karen Wright
11 best anti-ageing day creams

11 best anti-ageing day creams

Slow down the ageing process with one of these high-performance, hardworking anti-agers
Juventus 2 Real Madrid 1: Five things we learnt, including Iker Casillas is past it and Carlos Tevez remains effective

Juventus vs Real Madrid

Five things we learnt from the Italian's Champions League first leg win over the Spanish giants
Ashes 2015: Test series looks a lost cause for England... whoever takes over as ECB director of cricket

Ashes series looks a lost cause for England...

Whoever takes over as ECB director of cricket, says Stephen Brenkley
Fishing for votes with Nigel Farage: The Ukip leader shows how he can work an audience as he casts his line to the disaffected of Grimsby

Fishing is on Nigel Farage's mind

Ukip leader casts a line to the disaffected
Who is bombing whom in the Middle East? It's amazing they don't all hit each other

Who is bombing whom in the Middle East?

Robert Fisk untangles the countries and factions
China's influence on fashion: At the top of the game both creatively and commercially

China's influence on fashion

At the top of the game both creatively and commercially
Lord O’Donnell: Former cabinet secretary on the election and life away from the levers of power

The man known as GOD has a reputation for getting the job done

Lord O'Donnell's three principles of rule
Rainbow shades: It's all bright on the night

Rainbow shades

It's all bright on the night
'It was first time I had ever tasted chocolate. I kept a piece, and when Amsterdam was liberated, I gave it to the first Allied soldier I saw'

Bread from heaven

Dutch survivors thank RAF for World War II drop that saved millions
Britain will be 'run for the wealthy and powerful' if Tories retain power - Labour

How 'the Axe' helped Labour

UK will be 'run for the wealthy and powerful' if Tories retain power