COOK v SPANISH HOLIDAY TOURS (LONDON) LTD
(Court of Appeal, 5th February, 1960)
Lord Goddard: This is an appeal from His Honour Judge Herbert, and in my opinion, with all respect to the learned Judge, it is clearly a case in which the appeal succeeds.
The Plaintiff, Mr Cook, being about to be married and wanting to spend his honeymoon in Spain, went to the Defendant’s place of business, the Defendants calling themselves Spanish Holiday Tours (London) Limited, and according to the findings of the learned Judge Mr Cook saw the Manager there who offered to provide a holiday for him by recommending a particular place to go to, a place called Tossa on the Costa Brava, telling him that he knew a good hotel there, the Hotel Voramar, where the Defendants had got bookings; they had taken a block of rooms there. so that is offered to him. Obviously the meaning of that is: “We can put one of these rooms at your disposal”, and accordingly an inclusive price is agreed for what is clearly shown by the Defendants; own invoice – we need look no further than that – as “2 inclusive holidays. Depart on the 3rd September, return on the 12th September, staying at Tossa at Voramar Hotel, £52.” If that means anything at all, it means that the Defendants had agreed with the Plaintiff to supply him with travel and with hotel accommodation from the 3rd September to the 12th September.
Now, it may be, and very likely would be in other cases or in other circumstances, that people who call themselves travel agents (but who in this case were clearly acting as principals) may make quite a different contract. They may say to a person: “We cannot quote you a lump sum. What we can do for you is to get your tickets on an aeroplane or by train and we can recommend you to a hotel to whom we will write if you like and ask if they have got accommodation for you”. But here the Defendants themselves were offering to put the Plaintiff and his wife up – I cannot use a better expression – at this hotel from the 3rd September to the 12th September.
That, of course, implies that they must provide them with a room. When these young people got out to this place they found that there was not a room for them. Not only was there not a room, but the hotel people said: “We know nothing about you at all”. As a matter of fact, in London a plan of the hotel had been produced to the Plaintiff, and here there is put down a black mark from the 3rd to the 12th to show the length of their stay, “Mr and Mrs Cook (coming back our charter)”, because they were chartering a plane to bring back their various people.
In these circumstances, it seems to me, with all respect, that it is idle to say that the Defendants have not agreed to do more than simply send out word to the hotel that two people called Cook were going to arrive. That would leave Mr Cook to make his own terms with the Hotel. In this case the Defendants made the terms. They said in effect that they were prepared to put these people up at the hotel for this week and to charge them £52 – not partly for the hotel and partly for the plane. We do not know anything about how the £52 was made up. It is one lump sum, and the lump sum is to provide a holiday for these people from the 3rd September to the 12th.
The short answer to the points that are raised by the Defendants is that the Defendants wholly failed to do it. You do not provide a holiday for somebody by giving them a railway ticket or an air ticket and no accommodation for which you have been paid. It seems to me that when we come to the question of damages it is quite clear that we have to assess them on the footing that there has been a total failure of consideration here. They did not provide that which they had been paid to provide.
These unfortunate young people, being stranded on the Costa Brava at this hotel, apparently asked the Manager of that hotel to telephone round and see if he could get them somewhere and he simply told them that the whole place was full and that there was nowhere for them to go, and they spent the night of this holiday sitting on a bench until they could get away in the morning and get into Barcelona where they managed to get a plane and come back. They had meanwhile telephoned, apparently to the father of one of them who had been round to see these travel people, and nothing further could be done.
Now, I think there has clearly been a total failure of consideration here, and the question is: For what are the Defendants liable? The Plaintiff says: “We had first of all to pay to get back”. They had not paid the travel agents so much money for a return ticket or so much money for anything else; they had paid them an inclusive sum. They had to pay to get back. That seems to me reasonable. they had got to get into Barcelona, because the plane goes from Barcelona. They had their return fare of £48. It is reasonable, I think, that they should have had some breakfast in Barcelona. Then there was the bribe to the B.E.A. man, “Cost of obtaining fare”. That is in accordance with the custom of the country, I think. I think we must allow that. It is an incidental sum which they had to pay to get a seat on the plane; that is what it comes to, and they cannot leave these unfortunate young newly married people stranded in Barcelona. We shall not allow the taxi fare from London Airport to home. What we shall do with that is take off £2.10.0d. and call it £60. Then as we say there has been a failure of consideration here, the Defendants will have to return the £104, because they undertook to do a thing for a lump sum, that is to provide everything for a lump sum, and they did not do it. So there was a failure of consideration. Therefore, that is £104.
Then comes the question as to whether they are entitled to some damages for the misfortune and disappointment and so forth, and so they are; but those sums are very difficult ever to assess. I dare say if you had asked them they would have said that they would not have gone through this experience for £500. They are entitled to some solatium, but we cannot give very much. It is just one of those misfortunes which happen in life. Something must be given, and we think if we give them a sum of £25 as some solatium for their disappointment that is sufficient. They went afterwards to Bournemouth and I have no doubt had an excellent time at that very nice seaside resort in the finest summer on record in England.
So we shall set aside this Judgment, allow the appeal and enter Judgment for the Plaintiff for £189 with costs both here and below.
Lord Justice Upjohn: I agree, The rights and liabilities of the parties must, of course, depend on the exact terms of the contract between them. I venture to think that the error which the learned Judge fell into was that he assumed that the Defendants were merely acting as agents on behalf of the Plaintiff to book rooms in an hotel. It is perfectly plain, for the reasons given by my Lord, that they were not so acting; The Defendants were acting as principals vis-a-vis the Plaintiff. They were offering the Plaintiff accommodation which they had available under a system of block bookings, and they were going, in the words of the Plaintiff, to take care of everything for an inclusive fee of £52. It seems to me perfectly plain that the Defendants were bound to provide the accommodation which they said that they had available for the Plaintiff. They failed to do so, and I agree that there was a total failure of consideration.
Mr Justice Diplock: I also agree, and there is nothing I can usefully add.
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Mr Beckman: There is an application I would make, and that is: Would your Lordships say that this is a proper case for leave to appeal to the House of Lords? The reason I ask for that is that: As Lord Justice Upjohn has said previously, there is a rather interesting moot point or points. This case may have a tremendous effect upon agents who deal with theatre bookings and travel agents throughout the country. It is a matter which can be of great importance where there is no exemption clause, as it were.
Lord Goddard: We have not decided this case on some general principle. What we have decided this case on is the particular contract in the particular case. There is no case to go to the House of Lords.