This is a much underused Law. (It doesn’t cover Scotland but Scottish Law is broadly similar). But as well as reading this post you should also see the more updated law Consumer Protection from Unfair Trading Regulations 2008 (updated 2014). It protects the consumer from being mis-led or mis-sold goods or services. If you enter into a contract and purchase an item or service because you believed a statement (not an opinion) regarding it, then you can end the contract, get a refund and claim compensation. There are three types of Misrepresentation where a false statement was made:
Fraudulently – statement made by someone that they know is untrue, believe it is untrue or is made recklessly Negligently – statement made carelessly or without reasonable grounds for believing its truth. Innocently – statement made without fault
If you entered a contract as a result of a fraudulent or negligent statement you can cancel the contract. You can also claim damages in most cases. These claims are on the basis of negligence or fraud. The person who made the misrepresentation has to disprove the negligence. So for example, if you book a holiday on the basis that it is a holiday where children are not allowed and find that when you arrive the place is overrun with children then this is a clear breach. I used the Act as part of a complaint for a story regarding misrepresenting a holiday booking.
This is considered to be when either party enters into a contract having reasonable grounds for believing that his or her false statement was true. The contract is usually just cancelled in this situation.
Under Section 2(2) Misrepresentation Act 1967 the court has the discretion to award damages instead of allowing you to end the contract if it deems it appropriate. It cannot award both, judged on nature of misrepresentation and losses suffered.
If you chose to continue with the contract although you were aware of the misrepresentation you will not be able to end the contract or claim damages. For example if you booked a holiday knowing that the hotel described in the brochure was family friendly but you knew this was a mis-print due to other factors in the brochure or had had it pointed out to you and you proceeded with the booking you will have, in law, “affirmed” the contract.
You need to act quickly after discovering the misrepresentation. For example, if you have been sold a mobile ‘phone contract on the basis of receiving 500 free texts a month and you have continued to use the ‘phone for a few months before complaining about being charged for them a court may say that you should have complained the first month in which you were charged. All cases are different though and are assessed as such.
I quoted this Act in a case against NatWest and Sunmaster. Which category of statement do you think they fell into? Have you used this Act? Will you now you know about it?!
When the holiday doesn’t deliver what you requested and paid for
Meet Adam and Melanie. Nice couple, they were getting married and booked their honeymoon on Sunmaster. Heard of Sunmaster? I’d never heard of Sunmaster. I won’t be using them now I have heard of them now either!
Booking a holiday
This is a very good example of misrepresentation and not supplying what you paid for.
Now, Adam booked the holiday via their website. Paid for it then was notified it cost a bit more, which he duly paid. (No, I would not have done this but keep reading and you’ll see why!) That was bad. Then it got worse. Although he booked the holiday in July last year for a holiday in April, Sunmaster contacted him to say… that they could no longer go on the accommodation that they had booked and offered an alternative. Oh well these things happen you might say. Well, maybe if the company had offered a refund or a like for like accommodation. But Sunmaster refused to refund and said that the alternative was like for like. You make up your mind whether it was like for like!
The original holiday booking
Small hotel (Riad), only 6 rooms
No children allowed policy
Included Spa facilities
Suite over 2 rooms
The alternative holiday offered
Large hotel, over 100 rooms
Advertised as a family resort, targeted towards families
No spa facilities
Don’t know about you but I think “No children allowed” and “Family friendly” are opposite ends of the spectrum?! I would certainly want the “No children allowed” option with the exception of my own child but it would appear that this is impossible to get 🙁 Also, I don’t think you needs a maths degree to work out that there’s quite a difference between 6 and over 100 rooms.
Not given the holiday paid for
Well, Adam didn’t like this at all. So he challenged it and got told again no refund no other alternative. But you’ll never guess what happened when Adam decided to start his own investigation?! He contacted the hotel directly and not only was it open, it also had his booking. So what on earth was all this about? Adam tried to find out and Sunmaster apologised for the mistake with no explanation for what happened and the holiday went ahead. He complained again but got no response.
But Adam contacted me. And me? Well I don’t like this sort of behaviour do I? It’s is not good for the consumer. Time to make a stand for consumer rights! Again. “I’ll get a response”. The Complaining Cow had spoken! Adam and Melanie went on their honeymoon and had a lovely time other than a nightmare transfer. Meanwhile I got to work carrying out one of my services.
The Complaining Cow challenges Sunmaster
Well, first things first. Although Adam and Melanie didn’t actually complain about the rise in the cost of the holiday, I did! I pointed out that it was my belief that it was a breach of the Misrepresentation Act 1967. I also pointed out that there are many reviews on many forums and review sites saying a similar thing, that one goes through the process online then ‘phones to book whereupon they are told that the price has gone up. Whilst I am aware that prices can fluctuate they do not and should not change within minutes of following an online process/database the same as with any other travel agent where you can complete the whole process online. In this case it was even worse as they had paid for the holiday. They were charged an additional £48.60. This seems a very dubious practice to me and I also found that the Advertising Standards Authority had instructed Sunmaster “…to hold evidence to substantiate the availability of their holidays at the advertised prices”. It would appear Sunmaster is not doing this. A contract is concluded when one pays (or agrees to pay) and the seller gives you your goods or services. This is called consideration. This puts Sunmaster in breach of contract to supply a holiday to them. For this we claimed legally owed compensation.
Thirdly. I wanted some answers regarding why the accommodation was changed in the first place!
Fourthly. In the last correspondence from Sunmaster a member of staff said “I have demanded a thorough and full investigation and explanation from our suppliers for this mis-information and I shall contact you further in this regard and in due course.” This was not the case as no further communication had been received. (That’ll be another breach of the SOGASA).
Fifthly. (Is that really a word?) On arrival Adam and Mel found cause to complain again at the appalling administration and service from Sunmaster. To cut another long story short the taxi transfer was dreadful, getting lost, asking for payment and delaying their stay by several hours.
Finally! So, outlining all this and threatening to take Sunmaster to the Small Claims Court I added the details of time spent on the matter, the ignorance shown, and the relevant bodies to be notified if satisfactory redress was not received.
Requested amount as redress for holiday not provided
£48.60 difference in quoted and paid price
£35 court fees
£20 Court expenses ( travel)
£250 for loss of earnings due to contacting Sunmaster
£35 transfer costs
£25 for loss of holiday due to taxi failures
£50 for loss of enjoyment of holiday due to start/taxi failures
£200 for inconvenience and stress
£200 costs for witnesses (those who have gone through similar experiences with Sunmaster)
£100 for costs incurred whilst researching possibility of cancelling/postponing the wedding.
Sunmaster response to the complaint about the holiday
Well. Despite emailing the CEO there was no response. Fine – see you in court Sunny Jim and emailed him a second time and gave him seven days. That email was effective and got a response. Offered £410, oh and all the gumph about terms and conditions (remember these can be challenged!) and they didn’t think they had breached any laws. I disagree but Adam and Melanie were pleased with their £410, the holiday cost just over £1000. BUT! One had to laugh, the response referred to Melanie with a different unknown surname, neither maiden or married names. So, I know I advise not to be sarcastic in complaints there are times when sarcasm just has to be used.
Counter response from us to Sunmaster not accepting their offer
I included some nice lines I thought. “I do not know what relevance your conversations with a “Miss Hunter” have on my case. Whilst I thank you and accept the offer of £410 I am concerned that the offer you are making includes a sum to a “Miss Hunter” we are not prepared to share any goodwill gesture with anyone else.” “I expect to receive details about your investigation into the transfer in due course” A few other lines about not addressing some points and not believing they had truly looked at a satisfactory amount for redress.
Result of the Sunmaster complaint
Cor, this is a long post innit? I have cut quite a lot of detail you know, stop complaining. One of the main reasons people don’t complain is because they don’t have the time and it does take time, particularly if you are researching all your legal rights. Anyway, the short story – £710 (everything asked for minus associated court costs). I think we had them worried don’t you?! So 10 day holiday in Marrakech for 2 for just over £300 🙂
Companies can learn a lot from this story, as the Internet becomes more and more popular for booking holidays, sites like Trip Advisor and other reviews sites and people like me around advising people of their legal rights, companies would be better placed getting it right in the first place.
Oh and Adam and Melanie told me I was “Awesome“. So, should you be getting a raw deal or you are from a company that would like to look at improving your service and increase sales see The Complaining Cow Services.
Or buy the book which will give you masses of information, advice tips and templates on getting refunds and redress for yourself! Check out the reviews!