Courts will decide if ‘no-go’ travel warning triggers refunds

Danger zone: Croatia is regarded as 'unacceptably high risk' by the Foreign Office (Simon Calder)
Danger zone: Croatia is regarded as ‘unacceptably high risk’ by the Foreign Office (Simon Calder)

Package holidaymakers whose destination becomes a “no-go” location may be entitled to a full refund – but it will take a court to decide, a leading travel lawyer has said.

Traditionally, as soon as the Foreign Office (FCDO) warns against travel to a destination, holidays are cancelled and customers become entitled to a full refund.

But since the coronavirus pandemic began, the FCDO has issued warnings to countries such as Bulgaria and Croatia – describing them as “unacceptably high risk,” even though they have significantly lower rates of new Covid-19 cases.

Many flights have continued to operate to “no-go” destinations despite the Foreign Office warnings, and some online travel agents have refused to refund holidaymakers whose trips go ahead.

At the Abta Travel Law Seminar, Farina Azam said: “Ultimately it’s going to come down to an interpretation of the regulations. A court will no doubt come to that decision for us.”

Ms Azam, partner and travel lead for Kemp Little, predicted that judges would side with the customer, saying “courts are very consumer friendly”.

She said any company intending to overrule Foreign Office advice would need to warn prospective travellers in advance.

“That has to be drawn to the customer’s attention before that customer has booked a holiday with you.

“There is a basic contractual point that customers book package holidays against a background of reasons being offered in the event of a change to FCDO advice.

“So I think if you do want to overrule that, then it has to be made very clear in your booking conditions.”

Sarah Prager, a barrister at 1 Chancery Lane, said existing rules did not make Foreign Office advice legally binding.

“As a matter of law it’s only where the contract cannot be performed as a result of something that’s happening at the destination.”

But she said: “We must bear in mind that we are trying to do is build confidence in the industry, and refusing refunds is not likely to do that.”

The leading package holiday operators, Tui and Jet2, are routinely cancelling holidays and offering full refunds when travel advice changes.

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