A recent decision by the UK’s Supreme Court shines a spotlight on the importance of managing the risks and protecting your family or those you are assisting with their travel arrangements when booking a luxury, five-star-plus holiday or hotel overseas. The decision illustrates how care must be taken when booking your travel arrangements, even if you are dealing with well-known, prestigious international brands.
In Brownlie v FS Cairo [2021] UKSC 45, the UK Supreme Court determined that Lady Brownlie could bring a claim for damages in England following a serious accident involving her and her family while on an excursion booked via the Four Seasons Hotel, Cairo.
Lady Brownlie’s claim for damages arose from a fatal road traffic accident in Egypt in 2010 in which she was seriously injured and tragically lost her husband, the eminent public international law specialist Sir Ian Brownlie. The accident occurred while Lady Brownlie and her family were travelling in a limousine, which she had booked in England before departing on the holiday via the concierge of the Four Seasons Hotel, Cairo.
The Supreme Court’s decision was the latest instalment in this long-running litigation following an accident that occurred some 12 years ago. The case is unusual in that it reached the UK Supreme Court on two occasions. In its first decision at the end of 2017, the Supreme Court found that Lady Brownlie had sued the wrong entity. The Four Seasons in Cairo was not legally owned or operated by the Four Seasons holding company that Lady Brownlie originally named as a defendant but by a local subsidiary, FS Cairo (Nile Plaza) LLC. The English courts subsequently permitted Lady Brownlie to substitute Four Seasons for the local Egyptian company responsible for operating the hotel at the time of the accident. However, this followed many years of expensive and time-consuming litigation, during which Lady Brownlie has been denied compensation for the significant financial losses that form the basis of her claim.
The opacity of the world’s luxury travel brands
The Four Seasons brand is synonymous with luxury travel, hotels and private residences in unique locations across the globe. It is a brand that, like Lady Brownlie, its guests would expect to be able to rely upon to put things right promptly and with minimal fuss when things go wrong. Experience shows, however, that the world’s biggest luxury travel brands will often hide behind a complex web of corporate arrangements, company structures, licences and franchise arrangements to avoid liability to their guests, including in the most difficult and tragic circumstances.
Four Seasons is not alone. We have acted in many cases where our clients have been seriously injured or killed while staying at some of the world’s most exclusive resorts. Unfortunately, some of the best-known and exclusive luxury travel brands have been elusive when challenged on liability for a serious or fatal accident involving their properties, travel arrangements or optional excursions. As in Lady Brownlie’s case, our experience has included representing clients seriously injured or killed while participating in adventure activities booked through the hotel, including a parasailing accident in Vietnam and a quad bike excursion in Morocco. When the global brand the client has entrusted with their holiday is asked to accept liability, they will often hide behind opaque corporate arrangements or seek to pin responsibility on a local third party with no corporate connection to the brand. This third party often has inadequate or no insurance and insufficient financial means to meet a claim for damages.
How can you manage the risks when booking with the world’s luxury travel brands and protect your position if the worst happens when you are away?
First, it is always worth considering having your travel arrangements put together as a protected package holiday. Under the Package Travel Regulations 2018, a wider range of travel arrangements are now protected beyond what might be considered the traditional package holiday involving chartered flights and high capacity all-inclusive hotels. Bespoke travel arrangements put together by your travel consultant are now likely to benefit from greater protection. If the travel organiser is based in the UK and there is a problem with your travel arrangements, you can pursue the travel organiser in the UK. They will be deemed responsible for the acts or omissions of the local supplier of travel services, such as the hotel or local transport provider.
If you are involved in an accident while travelling, be sure to preserve any evidence. Take photographs of the accident location and any equipment that was involved. Note down the names and contact details of any witnesses. Make sure you report the incident in full to the hotel, local supplier of services and travel organiser’s representatives. Do not sign any incident report if you consider the content is inaccurate. Ask for any potentially relevant CCTV footage to be preserved. It may be necessary to notify the local authorities and enlist their help with gathering and preserving evidence. Often, following a serious incident overseas, the victims and their loved ones will turn to their country’s embassy or consulate for assistance, only to find that these public resources are limited. Seeking specialist legal advice from the outset is the best way to fully protect and preserve your interests, even if you decide later against taking action.
Bear in mind that when things go wrong, travel organisers will often defend a claim on the basis that they, the hotel or the local supplier of travel services has complied with local standards. This argument may surprise those who have entrusted their travel arrangements to a specialist operator who has put together a bespoke, luxury offering.
In the case of X v Kuoni [2021] UKSC 34, the UK Supreme Court recognised that the central purpose of a holiday contract is the enjoyment of the holiday and travel services by the customer. Individuals who have booked a bespoke, luxury travel arrangement with a specialist travel organiser will have an expectation as to their anticipated enjoyment, which may inform the standard to which the travel services should be provided. The local standard is nevertheless a point that is routinely raised in defence, particularly once the travel organiser’s liability insurer takes over the claim. This further highlights the importance of early evidence gathering to challenge the travel organiser’s position.
The difficulties encountered by Lady Brownlie with the Four Seasons Hotel group demonstrate the importance of pressing for the right answers from the outset as to who the holiday or accommodation contract is with, particularly when the booking is made directly with a local supplier. Getting as clear and detailed an answer as you can at an early stage will help save time and costs later on, notably on any challenge to the jurisdiction of the courts.
Will the travel organiser’s liability extend to adventure activities and excursions?
Adventure activities are increasingly popular and will often be a key motivation for visiting a particular destination. If you plan to book adventure activities or excursions while travelling, ensure these form part of your pre-booked holiday arrangements and fall within the package contract. This may take away some of the spontaneity we all enjoy on holiday, but it will greatly increase the prospect of a viable means of redress should things go wrong.
In Lady Brownlie’s case, while she may have been right to put her faith in the prestigious Four Seasons brand, if her travel arrangements had been packaged together to include the flights, hotel and excursion transport, she would likely have been able to pursue the travel organiser directly under the Package Travel Regulations. This approach to organising travel provides less hassle from the outset. If you choose the right travel organiser, you should still guarantee the specialist, bespoke travel arrangements and experiences you are seeking.
Keep in mind the enhanced protections often available to consumers
No matter how accustomed you might be to travelling the globe for business or pleasure, keep in mind that you will be doing so as a consumer when making personal travel arrangements. This means you will be considered the “weaker party” to any dispute that arises, which the law recognises through enhanced protections.
Under English law, the terms of the contract(s) for your travel arrangements should be fair, with any onerous terms brought clearly to your attention during the holiday booking process. Consumers based in the UK (and indeed EU) also benefit from being able to pursue the other party to a contract in their home courts.
You can find further information regarding our expertise, experience and team on our International Injury page.
If you require assistance from our team, please contact us.
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