Titshall v Qwerty Travel Ltd

An inclusive price is not merely an arithmetical total of separate component prices. The question is factual and case-specific: whether the services were sold as components of a combination, so that the consumer bought and paid for them as a whole, or were separate sales made at the same time. Separate billing does not prevent a package where the substance of the transaction is otherwise a package. A breakdown of component costs does not itself establish separate sales. On the facts, the service charges helped connect the flights and accommodation as one package. The seller was therefore liable under regulation 15(1) of the Package Travel, Package Holidays and Package Tours Regulations 1992. The wider liability of an agent acting only for another package organiser was left open.

Mr Titshall appealed against a preliminary-issue determination by District Judge Glover in the Dartford County Court. He had booked a last-minute holiday to Corfu through Qwerty Travel Ltd and was later injured at the hotel. Qwerty denied that it had sold a package and contended that it had acted only as agent for separate flight and accommodation suppliers.

The judge found a pre-arranged combination of transport and accommodation, lasting more than 24 hours, but concluded that the services had been purchased separately at an aggregate rather than an inclusive price. The claim was dismissed. The central issue before the Court of Appeal was whether the services had been sold as components of a package at an inclusive price and, consequently, whether Qwerty was liable as the other party to the contract.

1. Disposition. Lord Justice Tomlinson delivered the leading judgment. Lady Justice Black and Lord Justice Longmore agreed. The appeal was allowed, the order of 8 February 2011 was set aside, and the court declared that Qwerty was liable for the proper performance of the obligations under the contract made on 24 September 2006 for the hotel accommodation. [26]
2. The requirement of an inclusive price in regulation 2(1) of the Package Travel, Package Holidays and Package Tours Regulations 1992 adds a substantive requirement to that of a pre-arranged combination. The court must decide, case by case, whether the services were sold as components of a combination or separately at the same time. The relevant question is whether the consumer was buying and paying for the services as a whole. This was the same inquiry identified by Goldring J and endorsed by the Court of Appeal in the ABTA case, The Association of British Travel Agents v Civil Aviation Authority [2006] EWCA Civ 1356. [17]-[20]
3. Separate accounts or invoices do not prevent a package where the services were otherwise sold as components of a combination at an inclusive price. Separate billing may, however, reflect the substance of the transaction where the services were in fact sold independently. Composite billing is evidence, but is not decisive. [19]-[20]
4. The judge’s findings did not support separate sales. There had been no explicit suggestion that the flights or accommodation could be bought separately. The service charges, however presented, supplied a unifying feature because they represented the cost of putting the combination together. There was no principled basis for allocating those charges between separate flight and accommodation sales. The judge therefore erred in treating the transaction as two separate purchases and in treating the price as non-inclusive. [21]-[25]
5. Qwerty conceded that, if a package had been sold on these facts, it was the retailer and very probably the organiser and was therefore the other party to the contract liable under regulation 15(1). The court made the declaration on that basis. It expressed no view on the broader question whether a disclosed agent acting merely as retail agent for another package organiser would be liable, or on the correctness of Gerard Hone v Going Places Leisure Travel Ltd. [16]

• Court of Appeal (Civil Division) — appeal allowed; the preliminary-issue order was set aside and a declaration of Qwerty’s liability was made.
• Dartford County Court — District Judge Glover found a pre-arranged combination but held that the services had been sold separately at an aggregate price and dismissed the claim.