If they gave you the choice to cancel your holiday when they informed you of the delay, they should have done this if this was what you told them to do.
I might be wrong but I don't think the same rules apply if you have previously been told of a delay, therefore not travelling to the airport. Even if they do, after a 5 hour delay you are only entitled to a refund of the cost of your flight, not the holiday. This is stipulated by EU reg 261/2004, not Abta or the CAA. I think for this to apply you actually have to have checked in for your flight and it doesn't apply if the delay has been previously advised.

This is from the ABTA web site regarding delays and entitlement from ABTA companies.

ABTA normally regards as significant a change of flight time or delay to a flight of more than 12 hours, in respect of a 14-day holiday. A change of flight time of less than 12 hours may still be regarded as a significant change if it involves a shorter holiday. In these circumstances you can either:

accept the alteration; or
cancel the holiday and receive a full refund of all money paid; or
make alternative travel arrangements of a comparable standard, if available.

NOTE: FULL REFUND OF ALL MONEY PAID.

My comment was in reply to your statement "I informed Thomson that they have breached our contract by failing to refund my money due to a major flight delay of greater than 5 hrs as stated by ABTA and CAA." The refund after a 5 hour delay is governed by EU regs and it is not a full refund, only for the price of the flight. If they change your flight time by more than 12 hours, or you have a flight delay of 12 hours, that is when you are entitled to cancel under the significant change conditions, and get a refund for your complete holiday.
If when you were advised of the delay you were given the option of cancelling, and you confirmed this is what you wanted to do, they should have done it.

I think you two are mixing up two sets of law and Thomson were pulling a fast one and trying to muddy the waters in between.

Lets clarify:

EC261/2004 applies to flight delays, it is a regulation imposed on the airlines and enforced (supposedly) by the CAA in the UK. It isn't very clear how it applies to packages although it would be fair to assume that if you have the option to cancel the flight part of an inclusive package (which this presumably is) then everything in the contract would also be covered - if it was a dynamic package that probably wouldn't be the case. But something at the back of my mind says you have to checkin on time before you can claim these rights - the CAAs easy guide has gone so I will have to dig through old paperwork later.

The Thomson contract T&Cs (civil law once the contract is signed) follows ABTA guidelines (which are not law of any sort). Now, these will say things about major changes and state that something like a late notice 12 hour rescheduling of the holiday will invoke your right to cancel. When Thomson gave the notification I suspect they were trying to say the schedule had NOT officially changed but they weren't going to make it that day. That's a bit cheeky to say the least and what else they said becomes very important. If they said checkin at the stated time, just in case it isn't as bad as feared, but be ready for a long delay, then they may be able to keep a straight face and claim it wasn't rescheduled. If they actually said checkin for the later time then clearly it was rescheduled, especially if the new checkin time was significantly later than the original departure time. You need to be very clear on what they said about checkin time.

There is then the matter of whether the notication actually offered the option to cancel or whether you have taken it from the T&Cs after you got the notfication. If they said you could cancel when they notified you and then wouldn't honour the deal it should be cut and dried. If you took the decision based on the T&Cs you'll have to argue your case and that's when the checkin time will become important.

EU reg 261/2004 covers charter flights, including those that are part of a package. After a 5 hour delay passengers are entitled to a refund of their ticket if they decide not to use it. As the regulation only pertains to flights, it doesn't include for reimbursement for other than the flight, so you can't get a refund for accommodation etc even if you're flight is part of a package holiday. If you haven't checked in, you aren't entitled to cancel under these regulations.
Obviously significant changes are completely different and covered by different guidelines which most tour operators do have written into their t&c's.

This is what I thought but on a proper package you don't have an itemised breakdown of flight/hotel prices so how much the refund is will end in an argument - unless somone else has already tried this in court (and failed) I'd stick with the "one price-one refund" approach. I'd be interested to hear of anyone who's tried it with a packaged flight, it's a vague area and so far I've only heard the theory.

But if it's a dynamic package I agree that you would lose everything else and I'm not sure even insurance would cover it if you cancelled the flight booking rather than the airline.

Either way, Martin did not check in so this option is lost.

I don't think it's vague at all. EU 261/2004 has nothing to do with package holidays and only deals with flights, and states "Since the distinction between scheduled and non-scheduled air services is weakening, such protection should apply to passengers not only on scheduled but also on non-scheduled flights, including those forming part of
package tours".
It makes no mention of being entitled to accommodation refunds, only unused tickets. "reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made"..
I also found this on a site about knowing your rights "If you have booked a package holiday, you are only entitled to a refund on the flight element of the package and must contact your tour operator".
Since the airline has to pick the tab up for any costs incurred through cancellations, delays and denied boarding, to me it is obvious that as they have no responsibility other than flying you to and from your destination, that anything other than flights would not be covered. In lot's of package holidays, the airline and tour operator aren't vertically integrated, so why should they have to pick the tab up for another companies part of the package?

Tour operators/airlines have a method of working out what the flight element of a package costs, and will tell you how much you are entitled to. I enquired a few years ago about cancelling under the EU regs (eventual delay was 12.5 hours). We spoke at length to the Thomsons duty manager at the airport and he told us that of course we could cancel but would only be entitled to the flight refund (which is what we knew already).
We didn't cancel in the end, partly because it was our silver wedding anniversary holiday and partly because it was an expensive holiday and the flight element refund was going to be peanuts. I'm so glad we didn't, it was one of the best holidays we've ever had!

You misunderstand - the vague thing is how much the flight would be valued at if it was part of an inclusive package. For instance the Tour Operator could turn round and say they value it at the Government Taxes plus £10. You might say it's worth far more than that. Since the flight price doesn't appear on the invoice it can only end in an argument. At the moment you have the right to cancel the flight but you don't have the right to know how much it's actually worth!

Just been reading the post by martinja1 again and several thoughts occur to me.

Thomson failed to cancel this holiday when instructed by email to Thomson 24/7 helpline.

Why an email? If it was me I would have wanted to speak to someone. Last year in Turkey (for whatever reason) the answer took 8 days to arrive. There is also the problem of who actually opens/reads the email and what permissions they have to act on the information contained therein. I never rely on emails.

I was then informed by Thomson to either check in as texted or risk losing both my holiday and my money.

This would indicate to me that they had possibly resolved the problem. Certainly if I had received such a text I would be asking questions. Why were they telling me that? Had they found a solution! They had warned you could lose it so you need to know why they were so adamant.

I informed Thomson that they have breached our contract by failing to refund my money due to a major flight delay of greater than 5 hrs. as stated by ABTA and CAA.

Whatever ABTA or the CAA say it is what is in Thomsons T&Cs that applies. When you enter into the contract then you agree the terms laid down by Thomsons. You also need to be fairly expert in interpreting the rules. They are not written for the layman.

I informed Thomson that they have breached our contract by failing to refund my money due to a major flight delay of greater than 5 hrs. as stated by ABTA and CAA.

The question you should be asking is what happened to the flight. Was it delayed 24 hours? Did they overcome the problem? If they did then they are in the clear.

fwh

steve8482 wrote:

You misunderstand - the vague thing is how much the flight would be valued at if it was part of an inclusive package. For instance the Tour Operator could turn round and say they value it at the Government Taxes plus £10. You might say it's worth far more than that. Since the flight price doesn't appear on the invoice it can only end in an argument. At the moment you have the right to cancel the flight but you don't have the right to know how much it's actually worth!

Sorry - just seen your reply. That's about right, as the Regs don't cover packages, only flights. Mine was valued at £85 each!
When I complained about the loss of a days holiday, I deducted the cost of the flights 2 x £85 from the total cost, before dividing by 14. They can't have it both ways lol.

I wholeheartedly agree with you. Thomsons do not listen to their customers. My bad experience was with the standard of our hotel room. Thomsons had advertised it as 4-star, but it turned out to be one of the worst hotel rooms I have ever stayed in. It wasn't even 3-star. I even wrote to Thomson's Executive Director, but did not get a reply from him.

So, beware before you book with Thomsons.

martinja,

Good luck for today, please let us all know how things go

Allymc316

Thomson Holidays - Flight Delayed 24 hours - Gatwick to Cancun - April 2011.
Thomson delayed my flight (TOM060) in April 2011 from Gatwick to Cancun by over 24hours, they also delayed another flight (TOM022) also Gatwick to Cancun also delayed 24hours, originally scheduled to leave around 30 minutes before mine. Only 12 hours before departure I was notified by text message from Thomson of this delay, I immediately requested this holiday to be cancelled, Thomson Holidays would not and did not cancel the holiday as instructed, I was forced to go on this 24 hour delayed holiday or risk loosing both the holiday and my money. My complaint letters to Thomson's were repeatedly ignored and my complaint about Thomson Holidays failing to cancel the holiday also ignored, they repeatedly referred to the EU 261/2004 regulation for delays. I eventually took out a small claims court case against Thomson Holidays and today at Romford County Court on the 6th January 2012 judgment was awarded to me, Thomson Holidays have been instructed to pay me within 21 days. I would advise anyone to take the same action against Thomson Holidays or any other tour operator who breaches the contract. Thomson ignored all my complaints for reimbursement but was quick to instruct me to claim from my personal travel insurance, this was irrelevant as it was Thomson Holidays that breached the contract and today I was awarded judgment and the total costs of £70.00 and £110.00 for the small claims was also reimburse and added to my reimbursement award.

Congratulations but I'm a bit confused.

I read the original post as you didn't actually go and were trying to get all your money back. Now it reads as though you went under pressure and claimed some compensation. What have you been awarded? Surely not a full refund after taking the holiday?

PS....

thanks for actually coming back and letting us know, so many don't bother!