Opinions please on the legality of P&O's T&Cs

[Windsurfboy]

Please see this from brochure

 

 

[Windsurfboy]

Got brochure 2 months ago

 

 

[tring]

51 minutes ago, Windsurfboy said:

Please see this from brochure

 

 

 

Very interesting indeed, we had not looked at that page of the brochure (page 7).  The brochure covers cruises from September 2022 to Oct 2024.  If someone had booked a cruise from that brochure, for a cruise in that date range, then it would appear that would be part of the Terms and Conditions at the time of booking.  However, there is something in the the terms and conditons, (as printed at the back of that brochure) which from memory, says that the transfer policy can be changed at any time (that is not an exact quote from the T&C's and I cannot find the relevant section of the T&C's at present, though I read them earlier tonight).  So the situation may not be that clear.

 

I do not know if it was mentioned in earlier brochures as I do not have one, other than from pre-covid times.  Perhaps others have?

 

 

[molecrochip]

A contract must be agreed in full by both parties. For a standard consumer product, the vendor will supply the Ts and Cs on a take it or leave it basis.

 

Ts and Cs can be changed without consent as long as the other party is not worse off. This typically occurs when there is an ambiquity or a contract is made more flexible. If the other party would be worse off then the Ts and Cs can still be changed but a copy must be sent, including details of the specific change with a cooling off period. Normally 28 days post receipt. During that time the affected party can cancel the contract penalty free and receive a full refund.

 

The only exception to the above is where the law changes and the Ts and Cs must adapt to law.

 

Covid changes were partly P&O flexibility and partly law-change influenced.

 

Finally, P&O must by law, if requested in writing, provide you with a copy of your Ts and Cs from the date of your booking together with any subsequent amendments. I believe P&O accept email as writing for these purposes. But the telephone team do not have to.

 

For anyone booked through a TA - a lot of this responsibility falls on the TA as you contract with the TA who contracts on your behalf with P&O. Same legal requirements still apply.

[Megabear2]

7 hours ago, molecrochip said:

A contract must be agreed in full by both parties. For a standard consumer product, the vendor will supply the Ts and Cs on a take it or leave it basis.

 

Ts and Cs can be changed without consent as long as the other party is not worse off. This typically occurs when there is an ambiquity or a contract is made more flexible. If the other party would be worse off then the Ts and Cs can still be changed but a copy must be sent, including details of the specific change with a cooling off period. Normally 28 days post receipt. During that time the affected party can cancel the contract penalty free and receive a full refund.

 

The only exception to the above is where the law changes and the Ts and Cs must adapt to law.

 

Covid changes were partly P&O flexibility and partly law-change influenced.

 

Finally, P&O must by law, if requested in writing, provide you with a copy of your Ts and Cs from the date of your booking together with any subsequent amendments. I believe P&O accept email as writing for these purposes. But the telephone team do not have to.

 

For anyone booked through a TA - a lot of this responsibility falls on the TA as you contract with the TA who contracts on your behalf with P&O. Same legal requirements still apply.

Very interesting. Which law changed to allow P&O to change the t&cs?  

 

Standard terms and conditions on a take it or leave it basis is actually very frequently abused.

 

From Gov.uk under common myths:

 

Changing the terms of a contract

If you have a term that gives you the right to change elements of a contract after it has been agreed with your customer, this is known as a variation clause. You might try to use this type of term to adapt a long-term contract if the circumstances around it change.

Variation clauses are likely to be unfair if they have the effect of a ‘blank cheque’, allowing you to adjust an agreed price at your discretion, or to change other important agreed aspects of the contract to suit yourself.

A term that gives you the right to make changes regardless of the consent of your customer may also be blacklisted in some circumstances by legislation. These terms may be challenged on that basis,  without needing to prove that they have failed the fairness test.

 

This fair contracts section also covers the loss of deposits and "reasonable" loss for a company. There have been successful challenges by consumers against tour companies on this point although I'm not sure any were against cruise lines.

 

Interesting times indeed!

 

(Apologies for the fonts going haywire, no idea why!)

 

 

UCT_06_Variation_order.pdf

Edited August 9, 2022 by Megabear2

[MX-Drew]

5 minutes ago, Megabear2 said:

Very interesting. Which law changed to allow P&O to change the t&cs?  

 

Standard terms and conditions on a take it or leave it basis is actually very frequently abused.

 

From Gov.uk under common myths:

 

Changing the terms of a contract

If you have a term that gives you the right to change elements of a contract after it has been agreed with your customer, this is known as a variation clause. You might try to use this type of term to adapt a long-term contract if the circumstances around it change.

Variation clauses are likely to be unfair if they have the effect of a ‘blank cheque’, allowing you to adjust an agreed price at your discretion, or to change other important agreed aspects of the contract to suit yourself.

A term that gives you the right to make changes regardless of the consent of your customer may also be blacklisted in some circumstances by legislation. These terms may be challenged on that basis,  without needing to prove that they have failed the fairness test.

 

This fair contracts section also covers the loss of deposits and "reasonable" loss for a company. There have been successful challenges by consumers against tour companies on this point although I'm not sure any were against cruise lines.

 

Interesting times indeed!

 

(Apologies for the fonts going haywire, no idea why!)

 

 

UCT_06_Variation_order.pdf 741.06 kB · 1 download

Thanks for everyone's input, and a very interesting find @Megabear2.

I'm not letting this one go and @Pippa04 maybe you can use some of this information too?

I will report back after my fight.

[majortom10]

The T&C's were in changed during the Pandemic and they were always going to revert back to original T&C's eventually. The changes to flexible changes was excellent and very advantageous to the consumer and a change that many have used their advantage. Time to move on you cannot have it both ways we were all happy about changes to T&C's and flexible bookings which they changed after many had booked on old T&C's.

[Pippa04]

Yes, all very useful content. I have actually formally requested the T&Cs applicable  on the date I booked my problematic cruise 5 times in the past few days but they will not give them to me.  It appears that it's easier to send them if they know why I want them. The words 'global circumstances' have been thrown at me many times as I apparently have to bear this in mind when I consider why I need to know what my rights are...  Think it's pretty obvious who's in the right from their reaction! 

[MX-Drew]

8 minutes ago, majortom10 said:

The T&C's were in changed during the Pandemic and they were always going to revert back to original T&C's eventually. The changes to flexible changes was excellent and very advantageous to the consumer and a change that many have used their advantage. Time to move on you cannot have it both ways we were all happy about changes to T&C's and flexible bookings which they changed after many had booked on old T&C's.

I fully understand that the T&Cs were likely to change back and I don't have a problem with that but my problem is I don't think it is morally (or possibly legally) correct to make the changes retrospective.

 

Put it this way, you book a cruise to the Caribbean then the next week P&O add into their T&Cs "If a cruise can not be supplied we can place you on any cruise." The week before your cruise you get an email to say the ship you were due to sail on has had a technical fault so you are now on a cruise to the Cannery Islands. 

I think you would be not be happy.

[Windsurfboy]

The small print at the back cannot be used to over write a large anď very clear message at the front.  

 

This has been proved in many cases

[zap99]

5 minutes ago, Windsurfboy said:

The small print at the back cannot be used to over write a large anď very clear message at the front.  

 

This has been proved in many cases

I believe in court judges often apply the ' what would the man on the Clapham omnibus think test ?." IE reasonableness.

[david63]

So what you are saying, if I have this right, is that you booked a cruise at a time when you were allowed to transfer that cruise to, basically, any other cruise at no additional cost.

 

Using that same logic - if you had booked a cruise before this capability was introduced, as many of us had done, then at that time there were rules in place as to what you could change to and at a cost of £100, then those rules should have been applied to all of those bookings but I did not hear anyone complaining that they were not being charged the £100 admin fee, or that they could move to a lower priced cruise.

[MX-Drew]

17 minutes ago, david63 said:

So what you are saying, if I have this right, is that you booked a cruise at a time when you were allowed to transfer that cruise to, basically, any other cruise at no additional cost.

 

Using that same logic - if you had booked a cruise before this capability was introduced, as many of us had done, then at that time there were rules in place as to what you could change to and at a cost of £100, then those rules should have been applied to all of those bookings but I did not hear anyone complaining that they were not being charged the £100 admin fee, or that they could move to a lower priced cruise.

That is not the point, my point is and will always be regardless who is in the situation, a company should not be able to sell something under one set of T&Cs then change them to their advantage and retrospectively apply them. If the company choses to be generous then that is up to them. 

 

 

[molecrochip]

@Megabear2 I was saying standards Ts and Cs can only be changed if the guest is no worse off. During the pandemic, it was used to apply temporary easements and changes to rebooking. This was advantageous for the Guest therefore legal. These changes were always listed as temporary with backstop dates (some of which were extended).

 

The legal changes, we’re for example, on restart, P&O we’re only allowed to carry vaccinated passengers. Thus was legally enforced but still led to a temporary change in Ts and Cs and would have been worse for some passengers.

 

Finally, please no one confuse the nice advertising blurb at the front of the book with the Ts and Cs at the back. You are signing up to the Ts and Cs not the advertising blurb unless the Ts and Cs state so. If the advertising blurb is wrong then that’s a false advertising issue rather than consumer law yet still very serious.

[molecrochip]

4 minutes ago, MX-Drew said:

That is not the point, my point is and will always be regardless who is in the situation, a company should not be able to sell something under one set of T&Cs then change them to their advantage and retrospectively apply them.

They are not allowed to do that.

 

The question which needs to be asked is are you relying on a term which was always listed as limited life, therefore has naturally extinguished itself?

 

Request your original Ts snd Cs in writing. Remind P&O they have a legal obligation to provide.

[Windsurfboy]

17 minutes ago, molecrochip said:

@Megabear2 I was saying standards Ts and Cs can only be changed if the guest is no worse off. During the pandemic, it was used to apply temporary easements and changes to rebooking. This was advantageous for the Guest therefore legal. These changes were always listed as temporary with backstop dates (some of which were extended).

 

The legal changes, we’re for example, on restart, P&O we’re only allowed to carry vaccinated passengers. Thus was legally enforced but still led to a temporary change in Ts and Cs and would have been worse for some passengers.

 

Finally, please no one confuse the nice advertising blurb at the front of the book with the Ts and Cs at the back. You are signing up to the Ts and Cs not the advertising blurb unless the Ts and Cs state so. If the advertising blurb is wrong then that’s a false advertising issue rather than consumer law yet still very serious.

 

 

The what you call "advertising blurb", has as much standing as the T&Cs, especially when in one single document , the brochure. The "advertising blurb" is a prominent  part of the offer to purchase which is the complete brochure . As such given its prominence,  it cannot be overwritten to the detriment of the consumer by small print in the back of the brochure. 

[tring]

 

The statement in the brochure and any verbal statement made over the phone is a misrepresentation if it is untrue. As long as the consumer relied on the statement he is entitled to rescind the contract and get a full refund.

 

"Rescission is available as a remedy whether the misrepresentation was fraudulent, negligent or innocent, provided the statement made induced the representee to enter into the contract and it was false." (Lexis Nexis)

 

[MX-Drew]

36 minutes ago, molecrochip said:

They are not allowed to do that.

 

The question which needs to be asked is are you relying on a term which was always listed as limited life, therefore has naturally extinguished itself?

 

Request your original Ts snd Cs in writing. Remind P&O they have a legal obligation to provide.

If you mean rely on as in I booked this cruise with the intention of cancelling or changing it then NO We had always intended on going and in fact been looking forward to this cruise for many reasons as it would have been a number of firsts for us. We are gutted that due to issues beyond our control (I'm unwilling to discuss these on a public forum) we find we have to move the cruise and the only one that suits us for a number of reasons is cheaper but not by a vast amount. Here is the really stupid part, I offered to pay the cost of the first cruise for the second cruise as I would have still lost less money but that could not be done!

[BouncingWheel]

19 minutes ago, Windsurfboy said:

 

 

The what you call "advertising blurb", has as much standing as the T&Cs, especially when in one single document , the brochure. The "advertising blurb" is a prominent  part of the offer to purchase which is the complete brochure . As such given its prominence,  it cannot be overwritten to the detriment of the consumer by small print in the back of the brochure. 

I am afraid that it can if it is clarifying/giving more detail of the offer (such as can be withdrawn at any time). It is like those radio ads where the main hook is at the front and then they speak very fast with the actual conditions at the end. That has been legal for years.

[Windsurfboy]

That an offer can be withdrawn to new customers is normal, that it can be rescinded once agreed is not allowed.

 

Small print can clarify  , but not completely  change meaning of the initial offer in the main advert/brochure.  What is being discussed is a complete change of meaning from you can make as many changes as you like to any cruise,  to no you can't you can change only once and only to a more expensive  cruise

[Trevor Fountain]

2 hours ago, david63 said:

So what you are saying, if I have this right, is that you booked a cruise at a time when you were allowed to transfer that cruise to, basically, any other cruise at no additional cost.

 

Using that same logic - if you had booked a cruise before this capability was introduced, as many of us had done, then at that time there were rules in place as to what you could change to and at a cost of £100, then those rules should have been applied to all of those bookings but I did not hear anyone complaining that they were not being charged the £100 admin fee, or that they could move to a lower priced cruise.

Two wrongs don't make a right.

[MX-Drew]

3 minutes ago, Trevor Fountain said:

Two wrongs don't make a right.

I was going to say the same thing.

[Windsurfboy]

2 hours ago, Trevor Fountain said:

Two wrongs don't make a right.

 

It's not two wrongs, the law is simple a company can't make retrospective changes to T&Cs that are detrimental to consumers, they can make any change that benefits consumers. So it's two rights by law.

 

Removing your example of a £100 charge is not detrimental,  adding one is.  The hypothetical  company could have decided not to apply these new conditions of a free change to previous contracts but they did . In the same way P&O decides not to pass on lower prices once you've booked,  it's  their choice. It did decide to allow changed for existing  cruises, it's once again their choice.

Edited August 9, 2022 by Windsurfboy

[Megabear2]

2 hours ago, Trevor Fountain said:

Two wrongs don't make a right.

And therein lies the problem the Gov.uk site mentions for large organisations.  Every individual booked under different terms depending on when they paid their deposit.  Therefore every booking is a single contract and every individual is most likely entitled to personal notification of a change of t&cs.  which also means the right to cancel without loss ....

 

That of course is impractical for P&O so the sweeping 3 August announcement without notice is their answer.  

 

Regardless of the historical booking t&cs I doubt there are many bookings left in the system which would have been covered by them and so current bookings made before 3 August will have been made during the flexible terms period.

 

Assumedly in MX's case the right to cancel without penalty is also relevant as P&O won't allow the change.  There have been cases won by consumers regarding holiday companies' terms stating loss of deposit on cancellation.  It should be noted that the gov.uk document deals with this issue as well, ie "reasonable costs". With a cruise so many months off it is more than likely that the cruise MX booked on will be resold (probably at a higher fare as its select) and it is therefore questionable if P&O will make a loss.

 

As I say, interesting times! This has been happening for many years and we all just accepted it because realistically the need to change has always been one person not thousands so no one was really worried.  The last two years or so has made the travelling public much more keen to know their rights, particularly as the holiday firms, airlines and cruise operators did rather take the p... at the start of things.  

 

The only more expensive rule has always been in my opinion a controversial one but unless you were impacted by it we all just just ignored it.  I'd love to know how many deposits have been thrown away by people over the years as I'm sure the money outweighs any loss to the companies.

[majortom10]

8 hours ago, MX-Drew said:

That is not the point, my point is and will always be regardless who is in the situation, a company should not be able to sell something under one set of T&Cs then change them to their advantage and retrospectively apply them. If the company choses to be generous then that is up to them. 

 

 

But surely P&O sold cruises under one set of T&Cs and then changed the T&Cs to the advantage of the cruiser and didnt hear many complaining then and thousands took advantage of cancelling cruises and transferring them at no cost and to lower priced cruises.