I took P&O to Court about closing the Cherbourg route and won

[shermans]

I have recently been involved in a legal battle with P&O Ferries which might interest you.  There has been good coverage about this in the Portsmouth area - BBC South Today and Meridian News both did features on it  today, and the Portsmouth daily paper The News has had an article on it also.

 

In essence, I have a house in Normandy which I visit at least once a month. I have always bought advance purchase tickets from P&O because of the considerable  savings,  but I also use Brittany Ferries as I am a member of the Property Owners Club.  And since P&O pulled out of Portsmouth, my pocket is hurting because Brittany Ferries have jacked up the prices, of course.

 

However, last August I bought 12 P&O tickets on the Portsmouth > Cherbourg route at a cost £1368.  In January, I attempted to use one of the tickets and was informed by P&O that they had terminated all their services to Cherbourg.  Although of course I knew from the press what had been going on, there had been absolutely no communication with me by P&O about this, despite the fact that I have been a regular passenger with them for the last five years using the advanced purchase tickets.  I assumed,  therefore,  that they were going to honour their obligations to me and pay for me to travel with Brittany Ferries on the same route - naively, I thought they would probably do some sort of deal with Brittany  Ferries to ensure customer retention.

 

But not a bit of it.  They offered to refund my money only.  They would not even pay any interest on the money which they had banked and which I had not used since last August.  So I warned them that I would take them to Court.  Still they refused, so I issued a claim on the Government's internet Court Service system for consumers www.moneyclaim.gov.uk.  It is so easy to do and involves little or no risk.  There was a court fee to pay for a damages claim of £1,000 of £80,  which I paid on line by credit card, which is of course added to the claim.  As the claim was for less than £5,000, I could not be ordered to pay their legal costs if I had lost.  So my only real risk was £80.  Can you imagine how much it would cost for P&O to defend such a claim ?  A lot more than the £1,000 which I was claiming, by the time they had instructed solicitors and barristers for a court hearing.

 

Well, in the event, it never came to a hearing because P&O did not file a defence.  As a result, I obtained a default judgement just by pressing a button on the keyboard requesting one !  P&O has been ordered to pay and all hell has broken out down in Dover.  They are now threatening to have the judgement set aside on the grounds that they knew nothing about it !! But the claim was properly served by the Court directly on P&O, and of course I ensured in correspondence that they knew the terms of the claim, the date of issue and the claim number as soon as I issued the claim.  They even acknowledged that letter, so it is too late to start pretending they knew nothing about it.  I have checked with the Court office who confirm that non-receipt of a properly served claim form is no defence to a default judgement,  and this is confirmed both in the Civil Procedure Rules and by precedent, so it is all bluff.  The Court  Service say that the only defence would have been if the Post Office had returned the claim to them unserved, but the Court office has confirmed that the Post Office has not done so.

 

In the meantime P&O has to pay up.  So it's all good fun.  However, there must be thousands of other people like me out there who should do the same thing.  It is not too late for anyone and please let me know if you want any advice.

 

The clue to it is the Unfair Contract Terms Act 1977 which stipulates that P&O cannot rely on exclusion clauses in their advanced ticket sale contract which allows them to supply a substantially different service to the one which was expected or to offer no service at all.  It is cast iron and they cannot get out of it.  So I recommend others to do the same.

[Russethouse]

I saw the South Today feature but missed the very end so thank you for updating your story.

Let us know when the money is in the bank !

Well done and Good Luck !!

[BJSLIV]

I suspect that you have been lucky, in the sense that your court papers were probably served on a part of the company that failed to pass it on to the people that mattered. Having worked for a big company such things happen.

If it had come to court I fear that you would have found that they had lived up to their part of the bargain in delivering some of the crossings at the price agreed and by offering to refund any remaining balance. 

I think the most that you could normally have  expected  from P&O would have been transfer to the Le Havre route and a little compensation for inconvenience.

I imagine that they may want try to revisit the judgement , even if your case is already lost, simply to underline that it isn't to be taken as a precedent.

You may have won your case by default, but it doesn't mean that the next person will be so lucky , especially as they will be more careful in future.

[shermans]

Thanks for your comment but I am confident that you are wrong in your assessment.  The Unfair Contract terms Act is quite explicit.  When dealing with a consumer, P&O cannot hide behind any small print in their contract excluding them from liability to provide something substantially different from that which was in the contemplation of the parties when the contract was executed - see section 3. Offering me a service to le Havre, 80 miles further away than my desired destination near Cherbourg and with a crossing of six and a half hours instead of two and half hours for a five day excursion fare is too radically different to be reasonable.  Why should I spend 12 hours more travelling there and back over a week-end ? 

If they had withdrawn the service due to technical difficulties, due to weather, due to operational problems, due to union difficulties, due to navigational exigencies, due to terrorism, due to almost anything other than commercial convenience, they might have been able to argue that it was reasonable.  But they contracted to carry me to Cherbourrg for £114 return for 12 trips.  Why should I have been subsequently forced to pay £250 to Brittany Ferries for exactly the SAME journey, Portsmouth > Cherbourg, for the sake of commercial convenience, especially when they knew that the route was under review but were very careful to ensure that I was not made aware of it at the time I bought the tickets ?

No doubt they will pontificate in due course about getting the judgement set aside and I look forward to such a challenge because it will lead to lots more bad publicity for them.  I have absolutely no doubt that they have no case.  The law is undoubtedly on my side and rightly on the side of any consumer.

If a contracting aprties were allowed by the courts to exclude liability to perform a contract for convenience - particularly where such a right is one-sided - there would frankly be little point in having contracts at all.  The courts are most unlikely to rule in their favour because it would not be in the interests of either contract law to do so or of the public.  If a contract can be avoided so easily, why bother contracting in the first place ?

Incidently, as to your comment that i was lucky and the papers were served on a part of the company that failed to pass it on, not only did I serve the papers personally on the Head of legal Services by name in Dover, but she was specifically asked by me to confirm the address on which service should be made and that she was authorised to accept service.  She dicatetd the necessary details to me over the telephone, subsequently wrote to me to confirm that she had received notice of the claim and its number and confirmed that it had been passed to their lawyers to deal with.

[BJSLIV]

Interesting that  served the papers correctly and they still failed to react.

Yet more evidence to support my long held belief that most theories of alleged conspiracies are more  truly attributable to incompetence.

It will be interesting to see if they do attempt any follow up.

Do keep us informed.

 

 

[Dick Smith]

Civil Service motto - 'Do not attribute to malice that which can be more easily explained as incompetence'.

[shermans]

I think the explanation was simple - no defence = no comment.  They hoped that by not defending it, it would attract less attention.  Default judgement meant that they would not have to argue their case in court.

If anyone else is interested in pursuing a similar claim, here is the appropriate section from the Unfair Contract Terms Act, which is re-inforced also by the Brussels Directive, Unfair Terms in Consumer Contracts Regulations 1994 which is even wider in its application.

"Unfair Contract terms Act 1977. Section 3 Liability arising in contract

(1) This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business.

(2) As against that party, the other cannot by reference to any contract term—

(a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or 

(b) claim to be entitled—

(i) to render a contractual performance substantially different from that which was reasonably expected of him, or

(ii) in respect of the whole or any part of his contractual obligation, to render no performance at all,

except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness."

[Dick Smith]

I would have thought that, having had their chance to make a defence and not done so (for whatever reason) the only possibility of resetting a precedent would be if they defended a similar case in future. I can't imagine an appeal on the grounds of 'we didn't bother to argue' would stand up very long in court.

Do you suppose it would be possible to sue them for impersonating a travel company?

[0BRIAN WOODHEADI,m here in franceddMMyyyy0Falseen-USI,m here in franceTrue]

There are not that many in terms of people that buy that far in advance,to make the money you claimed a large bite out of their profit,so not to defend it would be for them less of an expense than to send a lawyer to arguee with the claim,as for not knowing etc.....over and above what you paid what did you get back from the court?

[shermans]

This advance purchase scheme was, according to P&O at the time, one of their most successful schemes and widely used by people who, like me, travel regularly to France.  The savings were about 50% on a normal fare and so very worthwhile.

As for what I got back, I got the difference between the cost of nine Brittany Ferries' tickets on the Portsmouth > Cherbourg route and what I had paid to P&O, which P&O of course have refunded.  Therefore, my net compensation, AFTER the refund and AFTER court fees was £1,000.  I rounded the claim down to £1,000 for convenience which was the next increment in the court fee scale.  But as P&O were ordered to pay the court fee, I could have claimed the full £1,100.

So I am now back in the position in which I was originally - I can buy nine new tickets from Brittany Ferries for roughly the price I originally paid to P&O.  In simple terms, the cost of the unused tickets was £1026.00  The payment from P&O is £2150.00.  Nine tickets from Brittany Ferries will cost me about £2,200.00 but of course they do not have a similar advance purchase scheme.  I have had to join their property Owners Club to get a discount which varies from day to day, so the actual cost to me will eventually depend on which days I travel, whereas under the P&O scheme, it was a flat rate of £114.00 per return crossing.

[Alcazar]

<<Do you suppose it would be possible to sue them for impersonating a travel company?>>

Coffee all over the keyboard moment! Very funny.

Strangely, P&O offer a similar scheme on Dover Calais, but this year it was cheaper to buy  ordinary crossings before January 15th.

Alcazar

[0BRIAN WOODHEADI,m here in franceddMMyyyy0Falseen-USI,m here in franceTrue]

We always found Brittany ferries much better than P&O,but maybe just us!The property owners club by BF gave up to a 33% discount for what was at the time a £30 yearly fee and if a overnight bunk was booked each person received a free breakfast.

[Dick Smith]

I agree - BF are much better, but I prefer the Normandie to the Mont St Michel. The cabin deals are good, but the breakfasts lately have been rubbish - no buffet, and this weekend they brought you just the one glass of orange juice...

[shermans]

I have used both P&O and BF regularly over the past two years, belonging to both schemes as I travel at least once per month.  However, BF's standards have fallen dramatically, particularly the food, whereas, much as I hate to admit it, P&O's standards (on the Western Channel) had improved significantly and I actually really preferred P&O by the end and their ticketing arrangements were much more flexible - I could change bookings up to 24 hours prior to departure without penalty, I just had to email my requirements without going through their website, and above all, they were 50% cheaper, even after the BF Property Owner's discount.  I am now forced to use BF again, and I am not impressed.  After March, I am probably going to drive to Newhaven and take the Dieppe route - longer, but cheaper.

In the meantime, BF's fares have sky-rocketed.  As I book "On line", I have copies of all my previous tickets for the last five years.  When I compare what I am paying today with what I paid previously, even on a like for like basis, I am outraged by it. But then they have a monopoly, so you cannot blame them.

It is now probably cheaper for me to fly with flybe from Southampton to Cherbourg and take the train than to go backwards and forwards with the car.  Overall journey door-to-door would be much faster and the cost marginally cheaper by air.

[0BRIAN WOODHEADI,m here in franceddMMyyyy0Falseen-USI,m here in franceTrue]

Shermans,instead of the train maybe car hire at cherbourg as opposed to the train???Our membership ran out 3/4years ago to the BF owners club but I`m sorry to hear that the service as gone down,I loved sally lines ramsgate to dunkirk,what a buffet.

[Porth]

I too am a traveller member with P and O although the tense should be past as with the closure effectively of Portsmouth we are faced with Brittany.

When this happened I was left with unused points and then received a letter saying if you do not use them by September they will be lost.

We live in South Wales and bluntly going to Dover to use them and then faced with the journey to Manche and with dogs was unacceptable.

As a lawyer I believed there was an arguable case for P and O to refund the notional value of the usused points.  They argued no I argued yes and said 'lets test it in the courts'

'As a gesture' they gave in and refunded the points! and a cheque drawn on the City branch of Lloyds TSB came into my possession.

It was a relatively small amount and it is going to charity but I am convinced of my position and they seemingly see some value in my argument for otherwise I am convinced they would not have written me a cheque.

 

 

[Porth]

As a lawyer I agree with our other contributor in the the unfair contractural term acts does provide the safety level that has been argued.

It used to be years ago that one served papers on the registered office of the Defendant that is now not the case.  Indeed I know of some Solicitors who serve papers on companies at remote addresses from the one that is subject of the claim but on the same company.  Yes they then get lost but that is not the fault of the Plaintiff.

 

I am sorry but if you think that P and O are going now to take this case from effectively the small claims court then upwards through the system then you perhaps will find that this will not be the case. In my opinion papers properly filed properly served are copper bottomed.

 

Again if you think that PLC's do not have County Court judgments then take some credit searches.  Lots of them have hundreds of them because they are so large that cases get lost in their system.

 

 

[shermans]

Hello Porth

Thanks for your posting which makes interesting reading.  I do wish that more people would stand up for their rights.  All businesses these days ride rough-shod over the consumer, far more than used to be the case.  I blame call centres for a lot of it, because they have no discretion and cannot therefore discuss anything; all they are allowed to say is "No".

So many businesses are full of sales pitch and how much they value you as a customer - until you become one and then you are taken for granted.  When something goes wrong, they no longer want you as a customer.  It is a fequent story and it will go on until there is a consumer revolution.  I am not talking about another Ralph Nader type of campaign.  I am just saying that too many people these days just roll over and die, which just encourages more exploitation.

I know that I am pitching at windmills most of the time but hopefully others will eventually follow my example.  It is the only hope.