If you discover that you are unable to resolve the complaint directly with the tour operator, you have the option to present your case under the ABTA Arbitration scheme.

This scheme was set up by the organisation in partnership with the Institute of Arbitrators.

Full details of the ABTA Arbitration scheme can be found on their website.

However, use of this scheme should be considered carefully.

If you lose your case you will be liable for the costs of the tour operator, and you will be bound by the arbitrator’s decision and will not be able to take your case into a court or other forum.

This is particularly important in personal injury cases. The rules of arbitration are essentially set up to deal with contractual claims. The rules are clear; they are not designed to deal with a claim that is essentially a claim for personal injury. The rules however make the provision that where the bulk of the claim is contractual, it can consider an element of personal injury or illness, but it is stressed such an element must not form the main bulk of the claim.

Let us consider the case of Mrs X. She and her husband went to the Barbados and discovered that there were a number of shortcomings with their hotel which diminished their enjoyment. In addition, there were some difficulties with sewage flowing from the side of the hotel directly into the sea. Mr X suffered severe undiagnosed gastric illness within a few days of arrival, the illness lasted for a further 4 weeks completely ruining the holiday and return to the UK. Mrs X pursued the tour operator in correspondence and was unable to settle her claim. She decided to use the arbitration process through ABTA. Mrs X carefully prepared her papers, paid her fee, and submitted them for a decision. The Arbitrator, in his written decision, declared that as her claim involved the principal issue of personal injury, her claim was disbarred by the rules. He then went on to consider her complaints and the illness part of the claim and declared that there was no case to answer. Mrs X had to pay the costs of the tour operator and was disbarred from taking it any further in any other forum or court.

The case raised some serious issues. The arbitrator’s decision is made in a pseudo-judicial setting and has a binding effect on the complainant. It was considered that Mrs X was prejudiced, in that the Arbitrator had decided that the claim was outside the scheme, but went on nonetheless, to make a final decision.

The correct course perhaps would have been to return the papers and advise Mrs X that she was in the wrong forum, and that she should go to her local court. It is suggested that perhaps the decision of the Arbitrator interfered with Mrs X’s right to a fair trial under Art 6 of the Human Rights Act. In interpreting the arbitration rules we can see that the initial decision rules on suitability for the process; it is the subsequent ruling that appears to be wrong with the result that she cannot now seek a remedy.

HolidayTravelWatch has considered Mrs X’s case, and she is now receiving advices from a specialist travel lawyer.

This cautionary tale only applies to personal injury cases.

Remember! You must ensure that you make your application for Arbitration within 9 months of your holiday!

Contractual claims, if properly presented, can be satisfactorily settled through the Arbitration process.

If you have encountered any difficulty in using this process, then you should contact HolidayTravelWatch immediately.

Tags: ABTA, holiday claims, holiday complaints, Holiday Food Poisoning Claims, holiday illness, Holiday Sickness

This entry was posted on Saturday, June 7th, 2008 at 1:51 pm and is filed under Resolve, Travel Advice, Your Consumer Rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.