Collective Commentary about the New Package Travel Directive

460 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE “One can put the matter in many different ways, but there is none whereby this casual conversation can possibly have any contractual consequences for these defendants. At the time of that conversation, Thomas Cook were not the agents of the defendants, let alone for the purpose of receiving or passing on the contents of that conversation. Whether they became their agent at a later stage, and if so, for what purpose, it is unnecessary to decide”. Lord Justice Kerr went on to say that in some circumstances it might well be possible to rely on the travel agent’s knowledge of a consumer’s physical condition (for example, where the consumer enters the shop in a wheelchair), but reinforced his earlier observation by noting that even if such knowledge could be relied upon by the consumer it was a matter between consumer and travel agent, and not the tour operator. This seems no more than a passing reflection on the fact that the consumer may be able to sue the travel agent in such circumstances for breach of duty, but even so, the travel agent would not be regarded as the agent of the tour operator simply by reason of the quality of type of information that the consumer passed to the agent. It might not, therefore, seem very likely that the courts would accede to the argument that the travel agent might become the operator’s agent at an earlier stage than the conclusion of a contract due to the nature of the information they possessed. However, if and when the travel agent becomes the agent of the tour operator (thus often making the tour operator liable for promises made by the travel agent) is of course a question of fact . In Holland v First Choice Holidays and Flights Limited 4 the consumers had asked for a certain type of accommodation and the travel agent had promised it would be provided, even though such accommodation was not included in the booking made with the tour operator. The required accommodation was not provided, and the consumers sued the tour operator for improper performance of the holiday contract pursuant to Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992, which implemented the old Directive within the jurisdiction of England and Wales. They succeeded on the grounds that the travel agent had been the agent of the tour operator from the moment that the consumers had communicated their intention to buy a holiday to the travel agent. On the facts this was said to be justified because: 4 Reigate County Court – Unreported 8 October 2003.