Lambert v Travelsphere [2005] CLYB 957L had booked a package tour in January 2003 which included flights to Beijing, a tour of China and a three day stopover in Hong Kong on the way back. In March that year the World Health Organization issued a warning about SARS for those travelling to Hong Kong. They and the UK Department of Health strongly advised against travel there. On 8 April T wrote to L stating that some of the itinerary had been changed but that the Hong Kong stopover may still take place. L cancelled on 12 April and claimed a full refund including the cancellation fee chargeable under T’s terms and conditions. On 23 April, T cancelled the tour and fully refunded other holidaymakers under Regulations 12 and 13 of the Package Travel Regulations.T argued that it was entitled to retain the cancellation charge as, at the time that L cancelled, T’s notice of 8 April was still in effect and it had expected to provide the tour including the stopover in Hong Kong. Furthermore, even if Hong Kong had been excluded it was not an essential term of the contract. On appeal it was held that the letter of 8 April was merely a statement that T might be constrained to alter the tour, not that T was actually altering it. Any uncertainty in L’s mind was due to the publicity concerning SARS and not because of the letter of 8 April. Thus, Regulation 12 did not apply. The court went on in obiter, to say that the Hong Kong stopover was an essential term. Also for T to be considered as “constrained” to alter the terms meant that it had to be absolutely inevitable and unavoidable.
