The Civil Aviation Authority v Travel Republic Ltd

Whether travel services form a statutory package depends on substance: whether they are offered as components of a pre-arranged combination at an inclusive price, or as separate services offered at the same time. The customer’s selection of linked services, intention to take a holiday and subjective understanding may be evidentially relevant, but none is conclusive. Services may be sold separately even where they are linked and commonly combined by customers. The issue is fact-sensitive. In a criminal prosecution, the prosecution must satisfy the criminal standard of proof. An appellate court may interfere with the factual classification only on established Edwards v Bairstow principles, such as absence of evidence or perversity.

The Civil Aviation Authority prosecuted Travel Republic Limited on informations alleging breaches of regulations 3(1A) and 15(2) of the Civil Aviation (Air Travel Organisers’ Licensing) Regulations 1995. Travel Republic marketed flights, accommodation and other travel services through its website and by telephone. Customers could select one or more services, which were charged at their separate prices.

A district judge acquitted Travel Republic, finding that the services had been sold or offered separately rather than as components of a package. On a case stated, the High Court considered whether that conclusion was legally open to the judge and whether the criminal standard of proof applied.

1. The appeal failed. Both questions posed by the district judge were answered affirmatively. The acquittals therefore stood.

2. The statutory question was whether the services were offered as components of a pre-arranged combination at an inclusive price, or separately but at the same time. The distinction is fact-sensitive. Linked services can still be sold separately, and the fact that most customers seek to create a holiday does not itself establish a package.

3. The customer’s subjective perception is relevant as evidence but is not conclusive. Nor is customer selection of the components necessarily decisive. The principles in The Association of British Travel Agents v The Civil Aviation Authority [2006] EWCA Civ 1356 governed the analysis. That decision recognised that the sale of facilities together does not necessarily constitute a package, while arrangements put together by the agent for the customer will commonly do so.

4. On the facts found, Travel Republic’s customers generally selected their own combination from a wide range of options. The district judge was entitled to conclude that the services were separate services offered at the same time. The conclusion was consistent with the examples and reasoning in ABTA and was not perverse.

5. The criminal standard of proof applied. Although the primary facts were largely undisputed, the legal classification depended on factual inferences from the manner in which the services were presented and sold. The judge was entitled to ask whether the prosecution had made him sure that a package was being made available. It was sufficient, strictly, that the prosecution had failed to discharge that burden.

6. An agent’s description of services as separate cannot determine their legal character where the substance of the transaction points otherwise. The court declined to refer the matter to the European Court of Justice, noting the existing authority and proposed amendments to the relevant framework.

• High Court (Administrative Court): on a case stated from the City of Westminster Magistrates’ Court, the appeal against Travel Republic’s acquittal was dismissed. Both questions were answered affirmatively.
• City of Westminster Magistrates’ Court: District Judge Evans acquitted Travel Republic and stated two questions concerning the statutory definition of a package and the applicable burden and standard of proof.