Texte intégral

Lord Justice Tomlinson :
1. This appeal raises a question as to the proper application of The Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992 No 3288, to which I shall refer hereafter as “The Package Travel Regulations”. Those Regulations were made under s.2(2) of the European Communities Act 1972 in order to give effect, in domestic legislation, to the Council Directive of 13 June 1990 on Package Travel, Package Holidays and Package Tours (90/314/EEC), to which I will refer hereafter as “the Directive”.
2. The matter comes before the court by way of an appeal against a determination of a preliminary issue by District Judge Glover in the Dartford County Court. In brief outline the Claimant/Appellant Mr Titshall booked a holiday in Corfu through (I use a deliberately imprecise word) the Defendant/Respondent Qwerty Travel Limited, to which I shall refer hereafter as “Qwerty”. Whilst staying at the Ermones Beach Hotel in 2006 he suffered serious injuries as a result, he says, of his attempt to open a sliding glass patio door which proved to be defective in its manufacture, in consequence of which the glass shattered. Qwerty says that at the time Mr Titshall and his partner, who had accompanied him on holiday, were heavily intoxicated and engaged in a row which generated a tussle, in the course of which he fell through, or kicked, or was forced through the glass pane. That aspect of the factual dispute remains to be tried and I need say no more about it.
3. In addition to joining issue with the Claimant’s account of how he came by his injuries, Qwerty denies that it owed any obligation to Mr Titshall over and above that “commensurate with its role as retail agent for the suppliers of accommodation at the hotel”. In fact Qwerty says that Mr Titshall and his partner (but I will henceforth ignore her) entered into two separate contracts, one with First Choice for the supply of return flights between London Gatwick and Corfu on 25 September and 2 October 2006, and another with a company called “Hotels4U.com” for the supply of seven nights all inclusive accommodation between those dates at the Ermones Beach Hotel. Critically, Qwerty pleads at paragraph 2 of its Defence that Mr Titshall “did not purchase a package within the meaning of the 1992 Regulations from the Defendant”. Although this may be pedantry, the relevant question is in fact whether Qwerty sold or offered for sale a package within the meaning of The Package Travel Regulations.
4. I turn then to the Regulations, in order to place into context such evidence as the District Judge heard and considered as to the circumstances in which the contract or contracts came into being. The Regulations provide, so far as material:-
“Whereas the Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to consumer protection as regards package travel, package holidays and package tours;
. . .
Interpretation
2.(1) In these Regulations -
“brochure” means any brochure in which packages are offered for sale;
“contract” means the agreement linking the consumer to the organiser or to the retailer, or to both, as the case may be;
“the Directive” means Council Directive 90/314/EEC on package travel, package holidays and package tours;
“offer” includes an invitation to treat whether by means of advertising or otherwise, and cognate expressions shall be construed accordingly;
“organiser” means the person who, otherwise than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer;
“the other party to the contract” means the party, other than the consumer, to the contract, that is, the organiser or the retailer, or both, as the case may be;
“package” means the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:-
(a) transport;
(b) accommodation;
(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package,
and
(i) the submission of separate accounts for different components shall not cause the arrangements to be other than a package;
(ii) the fact that a combination is arranged at the request of the consumer and in accordance with his specific instructions (whether modified or not) shall not of itself cause it to be treated as other than pre-arranged;
and
“retailer” means the person who sells or offers for sale the package put together by the organiser.
(2) In the definition of “contract” in paragraph (1) above, “consumer” means the person who takes or agrees to take the package (“the principal contractor”) and elsewhere in these Regulations “consumer” means, as the context requires, the principal contractor, any person on whose behalf the principal contractor agrees to purchase the package (“the other beneficiaries”) or any person to whom the principal contractor or any of the other beneficiaries transfers the package (“the transferee”).

Application of Regulations
3.(1) These Regulations apply to packages sold or offered for sale in the territory of the United Kingdom.
. . .
Liability of other party to the contract for proper performance of obligations under contract
15.(1) The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.”
5. The expressions used in the Package Travel Regulations must obviously be given a meaning consistent with the purposes of the Directive which required their promulgation. Some guidance is to be derived from the recitals to the Directive, which was adopted, as appears from Article 1, “to approximate the laws, regulations and administrative provisions of Member States relating to packages sold or offered for sale in the territory of the Community.” Those recitals include:-
“Whereas the national laws of Member States concerning package travel, package holidays and package tours, hereinafter referred to as 'packages', show many disparities and national practices in this field are markedly different, which gives rise to obstacles to the freedom to provide services in respect of packages and distortions of competition amongst operators established in different Member States;
Whereas the establishment of common rules on packages will contribute to the elimination of those obstacles and thereby to the achievement of a common market in services, thus enabling operators established in one Member State to offer their services in other Member States and Community consumers to benefit from comparable conditions when buying a package in any Member State;
. . .
Whereas disparities in the rules protecting consumers in different Member States are a disincentive to consumers in one Member State from buying packages in another Member State;
Whereas this disincentive is particularly effective in deterring consumers from buying packages outside their own Member State, and more effective than it would be in relation to the acquisition of other services, having regard to the special nature of the services supplied in a package which generally involve the expenditure of substantial amounts of money in advance and the supply of services in a State other than that in which the consumer is resident;
Whereas the consumer should have the benefit of the protection introduced by this directive irrespective of whether he is a direct contracting party, a transferee or a member of a group on whose behalf another person has concluded a contract in respect of a package;
. . .
Whereas if, after the customer has departed, there occurs a significant failure of performance of the services for which he has contracted or the organizer perceives that he will be unable to procure a significant part of the services to be provided; the organizer should have certain obligations towards the consumer;
. . .
Whereas both the consumer and the package travel industry would benefit if organizers and/or retailers were placed under an obligation to provide sufficient evidence of security in the event of insolvency;”
6. Whilst consumer protection is plainly not the primary object of the Directive, save insofar as that can be equated with the achievement of a common market, it can I think at the least be said that one purpose is to render it straightforward for a consumer to effect recovery from a single domestic source in the event that he has bought a package which involves the supply of services in a state other than that in which he is resident and when there is some failure properly to perform.
7. The parties agreed that there should be a preliminary hearing “to resolve the issue as to whether the claim arises from a package holiday and whether the Defendant was a party to the holiday contract”. Judge Roberts approved that approach and directed such a hearing. The parties apparently had in mind a desire not unnecessarily to incur the costs of calling witnesses from Greece. Whether this approach was best calculated to promote expeditious disposal of the claim may be open to question.
8. The hearing took place before District Judge Glover on 8 February 2011, already therefore almost four and a half years after the holiday had been booked in the course of one short telephone call between Mr Titshall and Mr Jamie Adams, a telesales clerk employed by Qwerty. The conversation would, the judge found, have lasted not more than ten or twelve minutes and it took place on Sunday 24 September 2006. Both Mr Titshall and Mr Adams gave evidence at the hearing. Unsurprisingly Mr Adams remembered nothing of the call, which would have been typical of perhaps thirty such calls with which he might deal in the course of an eight-hour shift. Equally unsurprisingly Mr Titshall had very little recollection of the details of what had been said. Neither took a note. Neither party was able to identify or to produce any contemporary documentation which might shed light on what had been agreed. If an invoice was sent to Mr Titshall, which would have post-dated his departure since that was at 0850 on Monday 25 September 2006, it has not been produced nor has any copy thereof been generated. The judge also heard evidence from Mrs Jasmine Dix, a customer services manager at Qwerty.
9. On 30 October 2007, which was after litigation had been intimated, Qwerty did generate on its computer system a document described as a “Customer statement”. This document is self-evidently a record of the booking, recording also that it had been made by “Jamie”. The document gives details of accommodation, of which the supplier is identified as Hotels4U.com, at a “transaction costing” of £216.02. Separately, it gives details of flights, as to which the document records “We act as agent for First Choice”. The “transaction costing” for the flights is £212.00. There are then set out three “Service Fee” supplements with individual “transaction costings” of £20.00, £109.98 and £11.16 respectively. There is no indication in the document to what services the Service Fees relate. No-one was able to tell the judge to what they related. There was speculation from Qwerty that they related to a charge for credit card use, a charge referable to the collection of the tickets from the airport on the Monday morning following the making of the booking on Sunday 24 September, and the agent’s charge for carrying out the booking. The charges do not relate to the cost of transfer between the airport and the hotel – the evidence was that Mr Titshall took a taxi from the airport to the hotel for which he paid locally. Although it was not noticed at the hearing before us, I have subsequently observed that under the heading “Accommodation Details” there is a standard entry “Transfers” against which is typed “Noa”, which I imagine means “Not applicable”. The Customer Statement records, after setting out the various items, that the Grand Total is £569.16. The document also records that that amount had been collected, as indeed it had as hereafter appears. We have no transcript of the evidence given at the hearing, but the judge was apparently told that the relevant information about the cost of the holiday could not have been imparted to Mr Titshall in the same manner as it was presented on the Customer Statement. The costs of the accommodation and of the flights there stated apparently represent the cost to Qwerty and there would have been a separate profit element, the amount of which would not have been revealed to a customer. The evidence was that an invoice would have been sent but that it would not have looked the same as the Customer Statement. The judge found that the Statement “is not an accurate copy of any invoice which may have been sent to Mr Titshall, and indeed it cannot represent the information which Mr Adams says he would have given to Mr Titshall when they spoke on the telephone.”
10. The judge also accepted the evidence of Mr Adams that he was required to go through and would at some stage of the conversation have gone through a prescribed script. There was in evidence before the judge a script which was not that in use in September 2006 but which was accepted to be not materially different from that which was in use. It reads as follows:-
“Our company is Qwerty travel limited. We act only as agents for third party suppliers. On this occasion your suppliers are …………and you are subject to their terms and conditions. You should note in particular that charges will apply if you amend or cancel your booking. Can I confirm that all passengers travelling are UK citizens and that they all hold a full UK 10 year passport, with a minimum of 6 months validity by the date of return.”
11. Against that background the judge made the following findings:-
“11. The brief background circumstances are that Mr Titshall, who was then an amateur boxer, was preparing for an important fight. He wanted to have a break. While watching television at his girlfriend’s mother’s home, they were looking through Teletext advertisements of last minute holidays. They saw an advertisement placed by this Defendant on Teletext on Sunday, 24th September 2006. The Teletext advertisements are, it would seem ephemeral. They changed from one day to another, as prices are changed, as holidays are purchased and as new offers become available. And so there is no copy of that advertisement to hand. I can, I think, safely find on the balance of what is more likely, that it would have advertised a last-minute get away to Corfu at an inclusive price.
12. What it would probably not have said is that this was a package within the 1992 Regulations, or that it was not a package within those Regulations.
13. Mr Titshall then went to his partner’s aunt’s home and telephoned the number that he had received from the Teletext advertisement. He spoke with the sales representative at the Defendant. It seems to be the case that he spoke with Mr Adams.
14. Mr Titshall was, of course, minded to make some enquiry about the advertisement and to proceed with the booking. This would involve him and his partner flying to Corfu the following morning, I gather at about 8.30 am, so it was very much at the last minute. On the other hand, Mr Adams had an office procedure which he was required, by his duties as the Defendant’s employee, to go through.
15. In my view, the only reliable evidence in the light of the Claimant’s understandably limited memory, and in the absence of any contemporaneous written documents, is that provided by the Defendant’s systems at the relevant time. I consider it more likely than not that Mr Adams would have had available to him a computer screen to which he was able to input the reference of the holiday in which Mr Titshall was interested. I also consider it more likely than not that the screen would show the items which were being offered for sale to make up the combination which Mr Titshall found attractive, that is to say, the flight and the accommodation. Obviously, in the light of my findings regarding the document at pages 43 and 44, that information would be as to different specific amounts of money.
16. On the balance of what is more likely, I find that Mr Adams gave to Mr Titshall an elementary and simple breakdown of the flight, accommodation and service costs arriving at the bottom line, which was all that interested Mr Titshall. He may well have done so at different points during the telephone conversation. For example, having given an indication for the prices of these elements of the combination, he may then have referred to the charge made by the airline on the return journey and of course, as we may all have experienced, additional charges arising from the use of a credit card.
17. With reference to Mr Adams’ witness statement, I do find and accept as a generalised comment that he was personally aware of the importance of dealing with matters of this nature in the way in which his Company required, as not to do so could result in a legal gloss to the arrangements concluded which would not suit the company which employed him.
18. For those same reasons, arising from the lack of contemporaneous documentation and the existence of a system within the Defendant’s office, I also find on the balance of what is more likely that Mr Adams went through a short script, along the lines of that which appears at page 41 of the bundle.”
12. The aunt’s credit card statement of account was produced in evidence. It showed a payment of £569.16 to Qwerty on 24 September 2006. Whilst therefore one can only speculate as to what Mr Titshall may have been told in the course of the “elementary and simple breakdown” to which the judge refers at paragraph 16 of his judgment, or as to what might have been the “specific amounts of money” shown on Mr Adams’ computer screen, plainly the bottom line was in fact that which appears on the Customer Statement.
13. Finally, the judge expressed his conclusions as follows:-
“23. In a case such as this, it seems clear that the advertisement to which Mr Titshall responded is an invitation to treat, which does not necessarily form any part of the contractual arrangements concluded between the parties and that, in this case, the offer is made by the telesales operator who offers to sell the combination of contracts to the caller in return for a certain amount of money, and is available for acceptance by the consumer, (Mr Titshall) if he finds the amount of money and the arrangements acceptable.
24. Accordingly, I find that the offer was made on the terms contained in the script, and that offer was accepted by Mr Titshall on those terms. It seems to me that Mr Titshall, therefore, purchased two services at the same time but, as a question of fact, did so separately.
25. In the light of those findings of fact I can turn to the issue as to whether or not there was a sale of a package within paragraph 2 of the 1992 regulations. As Mr Jones so rightly says, there was a pre-arranged combination in the sense clarified by the European Court in the Club Tour case, which I have not read and which has not been presented to me, but which I have seen set out in the ABTA v CAA case, to which I have already referred.
26. Further there were two qualifying components – the flight and the holiday.
27. Thirdly, the arrangements were to prevail for a period of more than 24 hours.
28. Fourthly, there was undoubtedly, on the balance of probabilities, a composite billing which, as Chadwick LJ explains at paragraph 30 of the ABTA case, might be evidence that the services had been sold as a package.
29. However, reverting to my findings of fact as to the nature of the contracts concluded on 24th September, the composite price was not an inclusive price but, rather an aggregate price. In my judgment, no package was sold.
30. It seems to me therefore, with some regret, that the claim must be dismissed.”
14. The reference to the Club-Tour case, Club-Tour, Viagrens e Turismo SA v Alberto Carlos Lobo Conçalves Garrido (Case C-400/00 [2002] ECR I-4051, here adds little. Its effect was summarised by Chadwick LJ in the ABTA case, The Association of British Travel Agents v Civil Aviation Authority [2006] EWCA Civ 1356 at paragraph 20 as follows:-
“The requirement that the components of the package must be sold or offered for sale as a "pre-arranged combination" is met not only where the components are put together by the organiser without input from the customer (typically, the brochure holiday) but also where the components are put together by the organiser in accordance with the specifications of the individual customer (or consumer) or group of customers (typically, the 'customised' holiday) – Club-Tour, Viagrens e Turismo SA v Alberto Carlos Lobo Gonçalves Garrido (Case C-400/00) [2002] ECR I-4051. And the requirement is satisfied not only in cases where the components have been put together and offered for sale by the organiser in advance of any contact with the individual customer but also in cases "where the combination of tourist services is the result of the wishes expressed by the customer up to the moment when the parties reach an agreement and conclude the contract" – ibid, paragraph [19]. It can be seen, of course, that the principle is expressly stated, as proviso (ii), in the definition of "package" in both the Package Travel Regulations and the ATOL Regulations (as amended in 2003). That proviso did not appear in the Directive, which was the text which the Court of Justice was required to consider in the Garrido case.”
15. It is not here in dispute that the judge was right to find that what was sold was a pre-arranged combination. The critical question as posed by the judge was whether it was sold at an inclusive price. Mr Jones for Mr Titshall submits that it was. It was the subject of a composite billing which, although not decisive, is here indicative of the substance of the transaction. Mr Saxby, for Qwerty, approaches the matter slightly differently. He submits that the pre-arranged combination was of services which were here sold or offered for sale separately at separate prices. The critical finding of the judge is therefore that at paragraph 24 to the effect that Mr Titshall purchased (scilicet was sold) two services at the same time but separately. The price must necessarily therefore be an aggregated price rather than an inclusive one.
16. Mr Saxby conceded below and maintained his concession before us that if it is concluded that what was here sold is a package within the meaning of the Package Travel Regulations, then it would follow that Qwerty had been a “retailer” and very probably an “organiser” within the meaning of those Regulations and so would be “the other party to the contract” rendered statutorily liable for performance of the obligations arising under “the agreement linking the consumer to the organiser or to the retailer, or to both, as the case may be”. Mr Saxby was at pains to explain that this concession had been made since it was recognised that what was ultimately sold to Mr Titshall was unlikely to correspond precisely to that which was advertised on Teletext, which was likely to have been expressed at a higher level of generality than the component parts offered to Mr Titshall over the telephone. Qwerty was therefore vulnerable to the argument that it had put together the package. Mr Saxby was concerned that we should not regard this as a concession that wherever a package has been sold by a travel agent that agent renders itself liable under these Regulations. He wished to reserve the position where the package has been put together by someone other than the travel agent who merely acts as a retail agent. In such circumstances, he submitted, the travel agent would not be “the other party to the contract” – rather that would be the organiser or retailer for which it acted merely as agent. Furthermore the Package Travel Regulations do not, he suggested, disturb the position that where an agent is acting for a disclosed principal, he attracts no liability. In this regard he referred us to a decision of Douglas Brown J in Gerard Hone v Going Places Leisure Travel Ltd, November 2000, to the effect that the Regulations do not render a retailer liable for the performance of the contract unless either he is an agent acting for an undisclosed principal or the retailer either on his own or jointly with another operator provides the package. In view of the concession made by reference to the facts of this case and for the purposes of this case only, it is unnecessary to express any view either as to the correctness of this decision or as to the position of a travel agent acting merely as a retail agent for another who has put together the relevant package. Whatever the reason for the concession it was realistic on the facts of this case, where, if there was sold a package there is no other single candidate in sight other than Qwerty as either the retailer or the organiser thereof.

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17. The ABTA case was a case in which ABTA sought to quash by judicial review a Guidance Note issued by the CAA relating to the sale of Air Package Arrangements. The relevant Regulations there under consideration defined “Package” in the same way as do the Package Travel Regulations. One question at issue was whether the CAA’s Guidance Note, which would inform prosecution for infringement of the Air Travel Organiser’s Licence (ATOL) Regulations, correctly interpreted the relevant Regulations when it advised that a price might be inclusive notwithstanding it was made up of separate sums relating to the value of each element, travel, accommodation and other non-ancillary tourist services. This court held that the Guidance was misleading insofar as it suggested that where services are sold at the same time in circumstances where the total price is the aggregate of the individual prices there will, necessarily, be a package for the purposes of the ATOL Regulations.
18. Goldring J, as he then was, in the Administrative Court, approached the matter in this way:-
“[156] . . . the words 'inclusive price' should be given their ordinary and natural meaning. The ordinary and natural meaning of the word 'inclusive' connotes more than a mere arithmetical total of the component parts of a price. If the substance of a transaction is the sale by the travel agent of separate and discrete components of (for example) a holiday, with no one part being connected with or dependent upon any other part (other than that they are sold together), to call the resulting price 'inclusive' is in my view to stretch the ordinary and natural meaning of that word. It is in reality no more an 'inclusive price' than is the total price of goods at the check out of a supermarket. For the sale of a package at an inclusive price the relationship between the component parts of that package must be such as to mean that the consumer is buying and paying for them as a whole: that the sale or offer for sale of one component part is in some way connected with or dependent on the sale or offer for sale of the others.”
19. I would respectfully endorse that approach, as did I think this court on the appeal against Goldring J’s decision which was dismissed. In the context of trying to determine what, if anything, does the requirement that the components be sold or offered for sale “at an inclusive price” add to the requirements that the components be sold or offered for sale as a pre-arranged combination Chadwick LJ, who delivered the only reasoned judgment, gave a series of examples designed to illuminate the problem. Starting from the common ground that the requirement that the components be sold or offered for sale “at an inclusive price” must be read in conjunction with the requirement that the components be sold or offered for sale as a pre-arranged combination, and that the price is the price of the combination, he continued as follows, in a passage which I cannot avoid setting out in its entirety:-
“25. In many cases – indeed, I suspect, in the majority of cases – the price of the combination will not be the aggregate of the prices for which the components within the combination would have been sold or offered for sale if each component had been sold or offered for sale as a separate service outside the combination. That may be because some of the components (for example, the services of the organiser's local representative) would not be available as a separate service outside the combination. Or it may be because some of the components can be provided more cheaply if provided in conjunction with other components - the hotel may provide a courtesy airport transfer service. Or it may be that, in order to sell the package, the organiser will price attractively: the organiser will offer the package of services at a price which is below the aggregate of the prices which would be charged if the components had been sold separately. In those cases there is unlikely to be difficulty in reaching the conclusion, on the facts, that the components (including flight accommodation) are being sold as a pre-arranged combination and at an inclusive price. The same could be said of cases – which, I suspect, are likely to be rare indeed – in which the price of the combination exceeds the aggregate of the prices for which the components would have been sold or offered for sale separately.
26. The more difficult cases are those in which the price for the whole is equal to the aggregate of the prices for which the components would have been sold or offered for sale separately. The principle is, perhaps, easier to state than to apply in practice. If the components are offered for sale as a pre-arranged combination – albeit that the components are not combined (and, perhaps, not all identified) until "the moment when the parties reach an agreement and conclude the contract" (to adopt the language of the Court of Justice in the Garrido case) – then the price for the combination will be "an inclusive price" notwithstanding that it may have been calculated, arithmetically, by aggregating the prices of the components: that is to say, notwithstanding that the price for the combination is the aggregate of the prices for which each component would have been sold or offered for sale if it had been sold or offered for sale as a separate service outside the combination. The factual question to be resolved – on a case by case basis – is whether the services are being sold or offered for sale as components of a combination; or whether they are being sold or offered for sale separately, but at the same time.
27. The point may be illustrated by examples. Suppose a customer, in London, who wishes to spend a week at a named hotel in, say, Rome. He asks his travel agent what the trip will cost him. The agent ascertains that the cost of the return flight will be £X, the cost of accommodation will be £Y and the cost of the airport transfers will be £Z. Without disclosing the individual cost of each service, the agent offers the customer flights, accommodation and transfers at a price of £(X+Y+Z). The customer accepts without further inquiry. In that case there would be little doubt – as it seems to me – that the services were sold as a pre-arranged combination and at an inclusive price.
28. Now suppose that the agent has informed the customer that the cost of flights will be £X, the cost of accommodation will be £Y and the cost of transfers will be £Z; and has explained to the customer that he can purchase any one or more of those services, as he chooses, without any need to purchase the others. He has explained, in effect, that the customer can choose to purchase the other services elsewhere; or to make other arrangements. In that case – as it seems to me – there would be little doubt that the services are not offered for sale as a pre-arranged combination and at an inclusive price.
29. What, then, if the customer chooses, and contracts for, one of those services. It is plain that that service would not be sold as a pre-arranged combination: it is not sold in combination with any other service. And it is plain that that position would not alter, if having paid for one of those services, the customer subsequently decides to take, and contracts for, another of the services. Nor would the position alter if, after paying for the second service, the customer later decides to take, and contracts for, the third service. And it would make no difference if, having entered into three separate contracts and received three separate invoices, the customer were to pay the three invoices with a single cheque. The position would be the same. There would have been no sale of a pre-arranged combination of components at a single inclusive price. Rather, there would have been three separate sales of independent services, the aggregate of the prices payable for the three separate services being satisfied by a single payment.
30. Nothing in the preceding paragraph is inconsistent with proviso (i) to the definition of "package" in the Package Travel Regulations or the ATOL Regulations ("the submission of separate accounts for different components shall not cause the arrangements to be other than a package") or with the proviso to the definition in the Directive ("The separate billing of various components of the same package shall not absolve the organiser or retailer from the obligations under this Directive"). As the judge explained at paragraph [158] of his judgment, if the arrangements would otherwise be a "package" – because the services are sold or offered for sale as components of a pre-arranged combination and at an inclusive price – the substance of the arrangements is not altered by invoicing the components separately. But, if the arrangements would not otherwise be a "package" – because the services are, in fact, sold or offered for sale separately – separate billing merely reflects the substance of the arrangements. The most that could be said is that composite billing might be evidence (in the particular case) that the services had been sold as a package.
31. Returning to the second of the examples which I have set out, difficult questions of fact are likely to arise if the customer chooses and contracts for two or more of the services on the same occasion. The principle is not in doubt. If the services are sold or offered for sale as components of a combination, there is a package: if they are sold or offered for sale separately but at the same time, there is no package. The question whether they are sold as components of a combination - or separately but at the same time - is a question of fact. That question may not be easy to resolve in the particular case.”
20. Helpful though this discussion is in identifying examples which fall clearly on one side of the line or the other, for my part its primary importance lies in Chadwick LJ’s emphasis, expressed more than once in this passage, that there is here a factual question to be resolved on a case by case basis. That factual question is whether the services are being sold or offered for sale as components of a combination or whether they are being sold or offered for sale separately, but at the same time. To my mind that is the same inquiry as that posed by Goldring J – is the relationship between the component parts of the package such as to mean that the consumer is buying and paying for them as a whole?
21. The facts which the judge was here able to find as to the manner in which the holiday booking was made are exiguous. The judge very sensibly made his findings in the light of what he regarded as inherently likely to have transpired. Thus he observed at paragraph 21 of his judgment that he rather doubted that Mr Titshall bothered to listen to or indeed would have understood (with all respect to him) the comment made about acting only as agents for third party suppliers. Of course, Mr Titshall is to be treated as if he had understood the reasonable import of what was said, but this observation by the judge who saw and heard the witnesses only goes to underscore the conclusion that I would myself have drawn that this is unlikely to have been a conversation in which there was any discussion of what alternative arrangements were available over and above those which appeared in summary form on Teletext and which must have been fleshed out to some extent by Mr Adams. The reality is that it was Sunday and that Mr Titshall had discovered the possibility of going away early the next morning to Corfu for seven days at an inclusive price. He decided that that was what he wanted to do and acted on that decision immediately. It is inherently unlikely that Mr Titshall would have sought to alter whatever arrangements were put to him as available to achieve that desired end.
22. Mr Saxby told us that the evidence in re-examination of one or other of Mr Adams or Mrs Dix, not foreshadowed in any way in their witness statements, was to the effect that if a customer asked whether he could swap one or other of the component parts of an offer such as that made to Mr Titshall, he would be told what else was available. So too, apparently, the evidence was that, had Mr Titshall asked if he could purchase just the flights or just the accommodation, he would have been told that he could. This evidence left unanswered the question how would the various “Service Fees” have been applied in such an event, as indeed it is unclear how those costs may in any event have been presented to Mr Titshall in the course of the “elementary and simple breakdown” which the judge finds to have taken place. However the short point is that there is no finding that any such discussion as Qwerty’s witnesses hypothesised in fact took place, and it is most unlikely that it did.
23. The key to the resolution of the factual enquiry whether the services were here offered for sale as the components of a combination or whether they were being sold or offered for sale separately – whether Mr Titshall was buying and paying for them as a whole – lies in my judgment in two features of the transaction. The first is that it is plain that no explicit suggestion was made to Mr Titshall that either the flights or the accommodation were available for separate purchase, the one without the other. The second is that the treatment of the service costs, however precisely that was dealt with in the elementary and simple breakdown, seems to me on the facts of this case at any rate to supply a clear unifying feature connecting the provision of the one service with the provision of the other. The service costs, or at any rate the greater part thereof, must in some way have been presented as in part the price for putting together the package, not as the cost of some separate service, available in its own right, which would have been an incoherent suggestion. It is inherently unlikely to the point of being inconceivable that, insofar as it was presented as a free-standing cost, as the judge found that it was, it was put forward on the basis that that cost would be X if the flights alone were bought or Y if accommodation alone was bought.
24. Whilst therefore I can see that the transaction had the potential to develop into an offer for sale and a sale of separate services, it did not develop in that way. Qwerty offered a package which inevitably had component parts – it would not otherwise have been a package – but where those parts were presented for sale as a whole for an inclusive price which comprehended the cost of putting them together as well as the cost of sourcing them. Mr Saxby’s principal argument in refutation of this conclusion was that it was implicit in Mr Titshall being given a breakdown of the costs of the flights and of the accommodation that he could purchase the one rather than the other. He submitted that the statement that Qwerty acted only as agents for third party suppliers who were then named served to reinforce that what was offered was two separate albeit simultaneous sales. I do not agree that these considerations, whether taken singly or in combination, are sufficient to achieve that result. In my judgment the argument ignores the context of the Teletext advertisement, which was of a last minute get-away at an inclusive price (notwithstanding that that may apparently have been expressed as “from” whatever may have been the figure quoted). In my view it ignores too the service costs, the greater part of which, without further breakdown or elucidation, necessarily represented the indivisible cost of making available the two component parts which made up the package.
25. It follows that in my judgment the judge was in error in characterising his findings of fact as amounting to Mr Titshall purchasing two services at the same time but separately. He did not purchase them separately. They were sold to him as the component parts of the combination or package. The judge’s further finding that the price was not an inclusive price was, I think, simply the corollary of his conclusion that there had been two separate purchases. But in any event it was I think a wrong analysis. It leaves unresolved the status of the service costs or at any rate the greater part thereof. There is no principled basis upon which one can conclude that any particular proportion of the service costs should be attributed to the sale of the flights or to the sale of the accommodation, and thus whilst the sale of two services may have been identified, there is no way of ascertaining what is the total cost of either of them.
26. I would therefore allow the appeal and set aside the Order of 8 February 2011, whereby the judge dismissed the claim. Subject to any observations Counsel may wish to make as to the form of order, I would declare that Qwerty is liable to Mr Titshall for the proper performance of the obligations under the contract made on 24 September 2006 whereby Mr Titshall was provided with hotel accommodation at the Ermones Beach Hotel Corfu for the period 25 September – 2 October 2006.
Lady Justice Black:
27. I agree.
Lord Justice Longmore:
28. I also agree.