Kupeli & Ors v Atlasjet Havacilik Anonim Sirketi

For consumer-protection rules governing contracts made away from business premises, an “excursion organised by the trader” means more than a consumer’s trip to a place outside the trader’s office. At minimum, the trip must not be undertaken for the very purpose of entering the contract. The concept is informed by the Directive’s concern with surprise and consumer unpreparedness.

Whether the condition is met requires considering the “excursion” and its organisation together. Relevant matters include who initiated and arranged the meeting, the distance travelled, whether the venue was the trader’s usual premises, whether it was identified as a place for sales, and whether the consumer had advance notice. A pre-arranged, advertised meeting initiated by consumers is not an excursion merely because it occurs away from the trader’s premises.

The claimants, members of the Turkish Cypriot community, brought claims against AtlasJet concerning airline tickets originally bought from Cyprus Turkish Airlines. Many claimants entered into conditional fee agreements with Goldsworth solicitors at a meeting held at the Cemevi community centre. They did not receive cancellation notices when the agreements were made.

The Costs Judge accepted AtlasJet’s argument that the meeting was an excursion organised by the trader under the Cancellation of Contracts Made in a Consumer’s Home or Place of Work etc. Regulations 2008. Slade J rejected that conclusion in [2016] EWHC 1125 (QB). AtlasJet brought a second appeal. The central issue was whether the meeting fell within the Directive and regulation 5 as an excursion organised by the trader.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. Lewison LJ delivered the leading judgment, with Kitchin and Floyd LJJ agreeing.
2. Meaning of “excursion”. The Cancellation of Contracts Made in a Consumer’s Home or Place of Work etc. Regulations 2008 had to be interpreted consistently with Council Directive 85/577/EEC. The Directive’s purpose was to protect consumers from surprise and unpreparedness. Applying the approach in Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV v comtech GmbH Case C-568/15, “excursion” was given its ordinary meaning in context and in light of that purpose. It meant more than a mere trip or journey and, at minimum, did not include a journey undertaken for the very purpose of entering the contract.
3. Relevant circumstances. The “excursion” and “organised by the trader” limbs had to be considered together. Travel Vac SL v Sanchis Case C-423/97; [1999] 2 CMLR 1111 identified relevant features, including an invitation by the trader to a specified place, a certain distance from the consumer’s home, premises outside the trader’s usual business premises, and a venue not clearly identified for public sales. The decision was not a comprehensive definition. The initiative and arrangements in the present case came from the community committee, not Goldsworth. The meeting’s purpose and location had been advertised in advance, and the venue was clearly identified for that occasion. There was no element of surprise.
4. Other authorities. Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 at p 623 supported the cautious use of travaux préparatoires. Heininger v Bayerische Hypo-und-Vereinsbank AG Case C-481/00; [2001] ECR 1-9945 and Schulte v Deutsche Bausparkasse Badenia AG Case C-350/03; [2005] 1-9215 were not authority for the proposition advanced because the relevant premise was not in issue in those cases. Crailsheimer Volksbank eG v Conrads Case C-229/04; [2006] 1 CMLR 21 did not answer the original question concerning third-party responsibility, although it reiterated the Directive’s concern with surprise.
5. Because the meeting was not an excursion organised by the trader, the Regulations did not apply to the relevant conditional fee agreements. The appeal was dismissed.

• Court of Appeal (Civil Division) — [2017] EWCA Civ 1037: dismissed AtlasJet’s appeal.
• High Court (Queen’s Bench Division) — Slade J, sitting with Senior Costs Judge Master Gordon-Saker as assessor, rejected AtlasJet’s argument that the Cemevi meeting was an excursion organised by the trader: [2016] EWHC 1125 (QB).
• Costs Judge — Master Rowley accepted AtlasJet’s argument that the meeting fell within the Regulations.