Package holidays: travel company liable for hotel rape

FIRST 'RETURN OF BREAKING LAW' UPDATE

My latest book gives the law as at 08 June 2021 which was the date on which I dropped my pen, had a whisky, caught up with 25 box sets and fell asleep for a week having got to the 762nd page. Anything covered in the book that has changed since will be updated in this blog, free of charge and so long as you behave and I retain my marbles. Yes, I know, I know. I must be crazy.

And that takes me to the law on package holidays (see chapter 34). There I explain that the company with which you booked your package holiday will be legally liable to you not only for their own sins but the sins of others who they have arranged should perform some part of the package on which they have messed up. That could be the hotel which poisoned you or, as I stated, 'as the Supreme Court is likely to rule in a pending case, the hotel whose employee raped and assaulted you.'

And that is precisely what the Supreme Court did rule - last Friday 30 July 2021. The case was X v Kuoni Travel Ltd [2019] UKSC 34 and concerned the 1992 Package Travel etc Regulations but the ruling is likely to apply to the later 2018 regulations which have taken over and, subject to a bit of tweaking, still have effect notwithstanding Brexit.

In the Supreme Court case the claimant had taken a package holiday through Kuoni in Sri Lanka. The hotel - the accommodation there was part of the package - employed an electrician. While he was on duty and wearing the uniform for maintenance staff, the claimant encountered him. He offered to show her the shortcut to reception. He then lured her into the engineering room where he raped and assaulted her. She brought  civil proceedings under the regulations against Kuoni for damages for what had happened to her. Kuoni resisted the claim.

Kuoni was liable to the claimant for the acts of the employee of the hotel. The electrician's acts constituted an improper performance of Kuoni's obligations under the package. It was an integral part of a holiday, stated the Supreme Court, that a hotel's employees should provide guests with assistance over a range of ordinary matters affecting them during their stay including assistance guiding them around the hotel. A wide interpretation of a package which will be welcomed by holidaymakers and cursed by travel companies.

Another ground of challenge for tenants: another trap for landlords

County court bailiffs and High Court enforcement agents (who are the uglier and more enthusiastic form of bailiff) in England and Wales must now generally give you advance written notice that they are coming to evict you from your home when you have stayed put after the court has made a possession order against you. How long in advance? At least 14 days. [see https://www.breakinglaw.co.uk/2020/08/bailiffs-about-to-awake.html ] The notice must specify the date and time of the eviction appointment.

But say the eviction does not take place on the specified date? Perhaps the bailiff or agent were off work with a bellyache or the court halted the eviction so that rent or mortgage payment arrears could be cleared but this has not happened. A new court procedural rule which comes into force on 07 August 2021 (see SI 2021/855) requires that a fresh written notice must be given which again specifies the date and time for eviction and at least seven days before the second appointment. 

The court does have power to dispense with the first or the second notice or to increase or shorten  the notice period.  This is something that landlord or tenant could raise with the judge at any court hearing at which the first appointment is being postponed or the second appointment is being arranged. Failure to give the prior notice - at least 14 or seven days - could invalidate an eviction that proceeded and entitle the tenant to ask the court to allow them back in and  for the eviction process to be restarted.

The Ministry of Justice has just updated its  guidance given to bailiffs and agents during the pandemic. It should be followed in England and taken into consideration in Wales alongside its own health and safety laws.  A check should be made with the household before bailiff or agent pounce and if it is established that an occupier has the virus symtoms or is self-isolating the action proposed should not go ahead. Oh and bailiffs and agents should not shout as that could increase the risk of virus transmission!

Also on the possession front, the temporary rules for landlords having to give a reactivation notice for  claims which were halted because of coronavirus are being extended to 30 November 2021 (Civil Procedure Rules 2018 Practice Direction 55C as modified by the 133rd update). 

VIDEO: Getting legal help for free

There may be no such thing as a free lunch - but there are some ways to get free legal help if you know where to look. All explained in my latest video below (with much more advice worth paying for in the new edition of Breaking Law available for a modest fee from the button on the left) 

PROBATE FEES: increases in the air

If you are someone who should be applying for probate to wind up a deceased's estate (that's where there is a will) or letters of administration for the same purpose (that's where there is no will) then PULL YOUR FINGER OUT!!!

I predict that around October or November 2021 the fee for applying in England and Wales will increase. Currently, the fee is more if you apply in person rather than through a professional such as a solicitor. In person, it will cost £215 as against £155 through a professional. The plan is to align and increase the fee. Everyone would pay the same and the new fee would be £273. Estates worth less than £5,000 do not currently attract a fee and that will not change. Remission from a fee (sometimes called the 'Help with Fees' scheme) will still be available to applicants of low means. There may well be inheritance tax to pay and that's another headache. You can soothe your brow on this by taking a look at 'The Return of Breaking Law'. [There he goes again].  

VIDEO: No fault divorce coming soon

The good news is that no fault divorce is coming next year. The bad news is that you have to watch me talk you through how it will work.

RARE WIN FOR LANDLORD: energy performance certificates

If my video hasn't induced vomit over landlord and tenant issues, https://www.breakinglaw.co.uk, stay with me and hear of some rare good news for landlords of lettings in England.

There are all sorts of tricks that a residential landlord has to perform in order to ensure that any notice they give to their assured shorthold tenant seeking possession under section 21 of the Housing Act 1988 is legally effective. One of them is to ensure that the tenant has previously been provided with an energy performance certificate.

There was no doubt that this obligation applied to tenancies granted on or after 01 October 2015. But what about tenancies granted before that date? Judges have been divided on the issue. But the Court of Appeal has just settled it. In a case called Minister v Hathaway and another [2021] EWCA Civ 936, it has ruled that tenancies granted before that date are not caught by the energy performance certificate requirement. There was power to catch them but it has not been exercised. I reckon that the prospects of the power being exercised are as great as me being appointed the mascot for the England football team. My knees are too knobbly.  

  

 

VIDEO: RESIDENTIAL POSSESSIONS AND CORONAVIRUS

In what will be the first of many videos (or several at least!) you can, if you can bear it, watch me explain a few hot topics inspired by the latest edition of my book - The Return of Breaking Law.

This first video looks at the confused and confusing topic of eviction notices after all the changes made during the pandemic. What I say might help you if you are facing eviction or are a landlord seeking an eviction order. Of course much more on this available in the book - buy it now from the button on the left.