Thanks for that infor Pilotpete. My personal experiences of TCD are not brilliant - summer 2005 had a major 14 hour delay and their offer of compensation was, pre Ros's intervention, derisory.

Whilst my experience will be of no consolation to creamycheesecake it demonstrate the variances with which travel companies treat their customers.

Last weekend I noticed that the turkish hotel I had booked in October 2006 no longer featured on the website (or brochure) of Simply Travel. I called and queried this and was told that they had terminated the contract with this hotel and that they were about to write to me to confirm and offer alternative accommodation in the same resort, same flights, etc etc. I said no thank you (as I knew I could get my original choice of hotel elsewhere) and they agreed to cancel and refund my deposit. The refund cheque arrived on 18 January!

This happened to loads of us last year on this forum when a hotel booked for a year and a half in advance, then later was withdrawn.

Ros did say that when the company breaks the news to you about your holiday being infact cancelled , they are in breach of contract. However she also stated that the company was in full rights to offer you an alternative package of similar or higher standard.
She recommends that if this happens you write to the company accepting the holiday "Under duress" and that you will seek compensation at a later date.
This though all depends on how soon you are meant to be travelling etc one days notice - six months.
She is your best bet though. It is amazing just how much these travel companies can get away with They were happy to hold on to our deposit for at least 10 weeks before they decided not to proceed with bookings, even though they were unsure whether it was going ahead when they accepted our money. Saying that though once they informed us officially in writing, they gave us the choice to rebook a holiday, offered £50 pp travelling and honoured our free child place. But you know what it's like, you book early to get a good price then they start creeping up.

However she also stated that the company was in full rights to offer you an alternative package of similar or higher standard

Beth reports.

But you know what it's like, you book early to get a good price then they start creeping up.

and again.

Beth,
I'd expect the company to be within it's rights to offer a similar or higher standard package.......but at no additional cost.

I DO take your point about prices rising as time approaches the dep. date but this would be a cost borne by the package provider in breach of contract and not by the passenger(s).

Any additional costs forced upon you by the package provider would, in my opinion, be reimbursed as part of the compensation demand were you to accept such a deal on the basis that there was no time to source an alternate deal.

It would be interesting to learn of the consequence of simply refusing to pay for any extra costs were the original booked holiday to be cancelled in writing by the T.O., the only alternatives being offered at a higher price. Would you then be able to sue for a full refund plus costs plus inconvenience, plus additional costs of arranging your own alternative package ?

Anyone been in that position ? Your experiences would be welcomed.

Hi Mike,

I understand what you are saying. It is how things should be done, I know, but it is not how they are done.

Only the people with very short travel dates ahead were offered respectable alternative accommodation, and had any chance of seeking compensation when they returned. I mean people actually ended up going to the airport for this holiday to be told they were actually being sent elsewhere. That is how bad it was. Yet this company continued taking bookings for the following year knowing that they were in a Law Suit with the contractors building the accommodation. They were within the rights to hold on to our deposits still because, at the same time that they couldn't guarantee the complex being ready, they couldn't say that it wouldn't be ready either. It was that ridiculous.
They offered to waiver the admin costs of changing our holiday and offered us the £50 pp, and would transfer out free child place. If a holiday cost more then we would have to pay it.
That is all they were prepared to do until they 100% knew that it was not going ahead, then they refunded you the deposit.
Luckily I was booked well in advance for next year, but all those booked for last year had to scramble about with the limited options they had left.

There is a huge thread on here about it somewhere. It is a locked topic though, but well worth a read to find out where you stand legally.

Consumer Rights need to be fought for. They don't come knocking on your door. The Package Tour regulations are often mentioned on this site. Peter, fwh and myself are guilty of quoting the relevant clauses frequently.

Beth, the above quote was taken from a post I'd made in this thread earlier, following fwh's informative post about the Tour Regulation rules.

Kosmar are required under the law to provide you with equivalent or better alternatives should they exist. There's no mention of extra money being required. Equally, there's no mention that extra money cannot be requested. As ever, the interpretation requires court clarification and hence a precedence being set.

This is where we, the travelleling public come to the fore. In summer 2005 when TCD refused to refund me what I considered to be a fair and proper amount I sought legal advice. TCD backed down and paid. Kosmar should be equally threatened.

In the meantime, I'll chalk them up as being one to avoid and if everyone else did the same Kosmar would have to change their stance or simply go out of business.

Sorry Mike, obviously each case is different.

I thought I was helping, but obviously not. My case is old news anyway. I just thought it sounded similar. I guess it pays to be tough and don't be fobbed off.
Hope the OP gets their holiday with Kosmar sorted. That's the main thing.

Of concern to me is the time being taken to comply with the regulations that are quite clear in stating that you may ask for and receive a refund.

I know that the banks are not very forthcoming with interest payments these days, but it is in their account not yours. I would submit an invoice to them covering any costs you may incur.

It is common practice these days for penalty charges to be applied for late payment. Delay in refunding does not assist if you wish to book a holiday with another company. Elsewhere people have posted noting increases in the cost of holidays since they have made a booking. There does seem to be a myth that you cannot apply the penalties back.

I know that people complain about charges being applied when payment is made by credit card yet this highlights the advantage of doing so. A complaint to the credit card company, explaining what has happened and that the company is not complying with the rules, would have at least resulted in the money being charged back until the matter was resolved.

fwh

fwh,

quite right about using a credit card to obtain extra security. This is particularly useful if the tour operator goes into liquidation. However, in order to claim against the credit card cmpany there has to be a breach of contract or a failure to provide the goods or services paid for. In other words the tour operator need to be "at fault".

In my experience I've found my credit card issuer to be very helpful and accommodative in this regard - I've used this facility four times in the past 10 years.

I have discussed this aspect on another site and in that example a very well known credit card issuer is not abiding by the spirit of the rules laid out in section 75 of the Consumer Credit Act.

I mention this simply to make you aware that whilst we might believe our credit card issuer will abide by the rules some issuers will delay refunding or freezing the amount paid bu credit card.

fwh makes a good point about bringing to the attention of the tour operator costs and loss of interest incurred as a result of their failure to repay all monies due with seven days.

I'd be tempted to write and inform them of your intention to recover such costs should payment not be made within the required seven days. Sending an invoice fixes an amount and that could only be calculated when you finally get the money and can then work out the amount. I suspect the T.O. will simply refuse to pay the invoice and you would need to take legal action through the county court to obtain these costs.

There's a section in the Travel Tour regs as follows: Crown Copyright is acknowledged -

Monies in trust
20.-(1) The other party to the contract shall ensure that all monies paid over by a consumer under or in contemplation of a contract for a relevant package are held in the United Kingdom by a person as trustee for the consumer until the contract has been fully performed or any sum of money paid by the consumer in respect of the contract has been repaid to him or has been forfeited on cancellation by the consumer.

(2) The costs of administering the trust mentioned in paragraph (1) above shall be paid for by the other party to the contract.

(3) Any interest which is earned on the monies held by the trustee pursuant to paragraph (1) shall be held for the other party to the contract and shall be payable to him on demand.

(4) Where there is produced to the trustee a statement signed by the other party to the contract to the effect that-

(a) a contract for a package the price of which is specified in that statement has been fully performed;

(b) the other party to the contract has repaid to the consumer a sum of money specified in that statement which the consumer had paid in respect of a contract for a package; or

(c) the consumer has on cancellation forfeited a sum of money specified in that statement which he had paid in respect of a contract for a relevant package,
the trustee shall (subject to paragraph (5) below) release to the other party to the contract the sum specified in the statement.

(5) Where the trustee considers it appropriate to do so, he may require the other party to the contract to provide further information or evidence of the matters mentioned in sub-paragraph (a), (b) or (c) of paragraph (4) above before he releases any sum to that other party pursuant to that paragraph.

(6) Subject to paragraph (7) below, in the event of the insolvency of the other party to the contract the monies held in trust by the trustee pursuant to paragraph (1) of this regulation shall be applied to meet the claims of consumers who are creditors of that other party in respect of contracts for packages in respect of which the arrangements were established and which have not been fully performed and, if there is a surplus after those claims have been met, it shall form part of the estate of that insolvent other party for the purposes of insolvency law.

(7) If the monies held in trust by the trustee pursuant to paragraph (1) of this regulation are insufficient to meet the claims of consumers as described in paragraph (6), payments to those consumers shall be made by the trustee on a pari passu basis.

Pretty heavy reading but my interpretation of this (and I'm NOT legally qualified) is that a passenger's money paid for a package is held in trust until the package is delivered. Should the package be cancelled or the consumer pulls out (due to a major change, say), the money should be released by the trustee to the T.Op. (the other party to the contract) for return to the passenger (consumer).

Interest earned whilst held by the trsutee will be released to the T.Op. for the T.Op's benefit - the costs of the trusteeship is paid for by the T.Op.

So, holding your money clearly benefits the T.Op.

It would be interesting to know who acts as Trustee for Kosmar. Perhaps a letter to that person/body would help release funds. If funds have already been released by the trustee to the T.Op. in relation to a specific consumer's package cancellation I'd consider the T.Op. to be commiting a crime were those funds not passed back to the consumer at the very earliest opportunity.

Write to Kosmar and threaten to involve the police.

Hi Mike,

I am quite sure Kosmar do not hold money in trust. I am not sure there is any requirement to do so either as they are ATOL bonded, which provides protection for the clients money as is required by the regulations. There are companies that do use a trust system but I think there is a high profile case now where that system has been abused.

Being following the thread and in my opinion a change of booked accommodation is a major change and therefore a refund should be offered. I think any court will agree with that so hassle them like mad.

Kind Regards
Stewart

Stewart,
thanks for the clarification. I was "winging" it a little on the trust aspect. Glad you agree though that they should refund as a result of a major change (as in this case).

Mike

In relation to the change of wording in the Kosmar brochure, I don't think that it is relevant.

The holiday was booked back in July so I am guessing it was booked from the 1st edition. Therefore, the contract in place between the individual and the tour operator is based on the information contained in this first brochure. Kosmar cannot change the booking terms and conditions at a later date without the agreement of both parties.

If they try to argue the new terms and conditions then I would refuse to accept as the contract between the booker and Kosmar was based on the old terms, and unless they advised you of the new ones, then as far as I can see they don't apply.

Hi there everyone, thanks so much for all the replies and advice.

Basically Kosmar are still refusing the refund so I wrote to ABTA with all the details and copies of all letters. They replied this morning that Kosmar have complied with everything they should have by ABTAs code of conduct - and showed me a copy of the code of conduct which states that if my holiday is significantly changed then I am offered a choice of 3 options, one of them being a refund.. so I am absolutely so confused as Kosmar obviously haven't given me this choice! In the letter ABTA mentioned at the end that if I'm still disatisfied to make a claim with the small claims court. Does anyone have any advice if this would be the right route to take? Would I have to stand up in court and explain everything?? Is there anything else I can do? Would this cost me alot if I lost for eg? I'm so confused with this and so upset.... and it's taking solong to resolve
Does anyone have any advice, and does anyone know how much it would cost me if I got a solicitor like Ros involved

Kind Regards
Alice

Amazing, as stated by ABTA, Kosmar have to offer a refund if required under the terms of their contract as stated in the brochure.

Contact Ros, even if just for advice - it's free.

I would send Kosmar a letter stating what ABTA have said and inform them that if a full refund is not given in say 14 days, then you will persue your claim through the small claims court, which is relatively cheap , and no you don't stand up in court, it's done in a room, very discreetly (in my experience anyway).

Kosmar would have to defend this action, and I would imagine because it looks favourable to you, they wouldn't even bother, and settle and do what they will have to do in the end.

Best of luck, I imagine some compensation might be due to you as well, Ros can advise here, you have obvously been put under stress.

Ironically, I am just about to book with Kosmar - maybe I'll hold off a little longer.

Robby

Thanks for the reply You're right I am so stressed and upset about this, feel I am getttting nowhere when everything suggests I should just be given a refund, and should have had it months ago!! I can't believe what ABTA have said either, they are completely useless! I am writing a letter to Kosmar one last time and then will either contact Ros, or the small claims court. If anyone knows or has any other ideas of other options please let me know!

Kind Regards

Alice

ABTA told you on the phone last year that you should get a refund, but if i understand now they are telling you that Kosmar have done everything right.
this can only mean that ABTA think your change of accommodation was minor(or that they are incompetent)
you have tried to do this on your own and are getting the run around from ABTA/Kosmar/your bank.
you were going to contact Ros in january.
stop stressing yourself. phone her on monday morning and let her guide you through this.
the advice is free, from a specialist.take advantage of it.
i am sure you are due money from Kosmar, and if you eventually have to pay Ros a fee i am sure that it will be worth it in respect of your time/stress levels.
don't waste anymore time. CALL ROS!

Hi there thanks for your reply, I guess I feel I'm entitled to get my money back without having to pay any hefty fees to anyone. I've posted a letter to Kosmar today and quoted the ABTA code of conduct:

2.2 Significant Alterations to Travel Arrangements by Principals

(iii) If a Principal makes a significant alteration to previously confirmed Travel Arrangements he shall
inform Retailers and direct Clients without delay and shall offer Clients the choice of either:

(i) accepting the alteration; or

(ii) cancelling the Travel Arrangements and receiving a full
refund of all monies paid. Such refund shall be sent to
Retailers and direct Clients within 10 days of receipt of
the notification to cancel; or

(iii) alternative Travel Arrangements of comparable standard,
if available.

and also the law on the trading standards website:

Sometimes, the tour operator might change important parts of the holiday after you have booked. If the change is a significant one, such as moving you to a different hotel that you are not happy with, or altering the itinerary, or if there is a major change in the flight times, they will probably be in breach of contract. You should be given the option to cancel and be given a full refund, if you wish.

and then stated I will go to the small claims court. I've looked into this and found out this is a fee of £50.
I'll consider ringing Ros too but suspect there will be a hefty fee if I want her to persue it?

Thanks for all your advice
Kind Regards

Alice

By the way, in reply to the post regarding which issue I booked from, it was the first issue with the 'old' booking conditions

Alice, ring Ros anyway, you will get free advice. Ros will only take on your case if it's a sure thing and all costs if you win will be paid by Kosmar. I believe an insurance policy can be taken out just in case you lose, but Ros will advise - please get in touch with her.
I agree with the trading standards stance - if they can't supply what you paid for and you aren't happy with an alternative, then a refund is in order as they can't fulfil their contract, ie:, they are in breach of contract.

Robby