http://www.travelweekly.co.uk/Articles/2010/01/20/32851/strong-reputation-saved-thomas-cook-from-corfu-fallout.html

http://www.travelweekly.co.uk/Articles/2010/01/19/32847/travel-businesses-should-build-bridges-with-aggressive.html

http://www.travelweekly.co.uk/Articles/2010/01/15/32815/losers-legal-costs-could-fall-following-judicial-report.html

Please see recent commentary on the matter. Travlaw LLP’s view on this matter is that the costs review will be generally good for the Travel Industry. See our forthcomething Newsletter for further analysis on this review.

Kylie and Sarah scooped the heralded ‘Best bottom feeder of 2009′ award at the Alternative Travel Awards dinner at London’s Metrolpole Hotel on 17th December 2009. Make of that what you will?!

Kylie and Charlotte attended the annual BETA awards in London, on 4 December 2009.

Travlaw LLP sponsored the prestigious award for ‘best website’ which we are delighted to anounce went to ‘World Nomads’ for their excellent website www.worldnomads.com.

Follow this link for media coverage of the event:-  http://thumbrella.com.au/worldnomads-com-scoops-best-website-award-5897#more-5897

 It was lovely to catch up with all the BETA members. We look forward to seeing you in the new year!

Q – “We run a tour operating business and we have just received a letter from a Court stating that a judgment in default has been entered against us. The judgment seems to be in favour of one of our customers who went on a package holiday with us last year and then wrote and complained. After we told him that his complaint was without foundation we never heard anything about it again until we received the letter from the Court. Is there anything we can do?”  

In GeneralIt seems that your complaining customer has now brought a civil claim against your company which has succeeded as neither they, as Claimant, nor the Court heard anything from you in your defence. Accordingly, there may now be an entry against you in the Court Register of Judgment, Orders & Fines (i.e. you have a County Court Judgment (CCJ) against you), which can affect, amongst other things, your company’s credit rating and your ability to obtain loans and mortgages. For the purposes of this answer the assumption is that there has been no change of address and it is simply the case that paperwork did not reach you prior to the letter confirming judgment in default.Clearly this is not great news, but fear not – it is not necessarily the end of the matter. There is a process available to you whereby you can get the judgment “set aside”, i.e. cancelled. If this process is successful you will be put in a position where the default judgment is nullified and you will find yourself at a point where it is as if you had just received the original Claim Form. Therefore, even if you succeed in getting judgment set aside you will still have a claim to deal with – but first things first!The process of getting judgment set aside requires prompt action in the shape of an application to the Court – you will need to fill in a form, pay a fee and then usually attend Court and explaining in person why you want the judgment to be set aside. Helpfully, if the judgment is not from your local Court it will be transferred there.If you have already thought “hang on, how is it I received the letter from the Court telling me about the judgment in default, but nothing else before that?”, then you are already thinking on the right lines. Usually default judgments arise from paperwork simply not reaching the Defendant and both the Court and the Claimant believing that they are being ignored. You will therefore want to make sure you make it clear to the Court that you did not receive the initial Claim Form or anything else up until the final letter.It should be said that simply not receiving the original Claim Form and other documents through the post is not itself a stand alone reason for getting judgment set aside. The reason for this is that if the Claim Form and other documents were sent to a valid address, in law they are considered “served” (sent and received) on you correctly. Therefore, as mentioned, you should act promptly, and you should be ready to explain why you think this may have happened. The ProcedureSo, what is the procedure? Well, the Claimant will have used the rules in Part 12 of the Civil Procedure Rules (CPR) to obtain the Judgment in the first place. The law on setting judgment aside is contained within the next section, CPR 13. The requirement for situations this is that one of the reasons listed within CPR 13.3 must be satisfied before the Court will consider setting the judgment aside They are:

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

Also of note is the section immediately following the above:

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Some dissection of CPR 13.3 is perhaps required: The first possible reason is if you have “a real prospect of successfully defending the claim”. In effect you have to demonstrate that you have an arguably successful defence, although you do not have to prove it there and then. For example:

• The claim relates solely to an independent excursion booked in resort by the client which was not part of the package purchased from you.
• The claim is evidently completely spurious.
• The claim is in fact wholly unrelated to you – i.e. you are ABC Travel Limited, and the claim relates to ABD Travel Limited, a similarly named but unrelated company.
• The claim is a personal injury claim relating to an accident abroad and the Claimant has provided no evidence as to what local standards apply and how they have been breached.

Similarly, it would not be as much of a defence to merely say something along the lines of:

• The complaint ratios at the time were quite low.
• The Claimant was very rude to our staff/representatives.

Of course, if it is the case that despite your earlier rejection of the complaint you actually accept that the claim against you is justified and correct, or that there is no real prospect of successfully fighting it, then there is little reason to spend further time and money getting judgment set aside. In that scenario you may be better advised to consider whether you should meet the judgment or take practical steps – i.e. if it is for money can you agree to instalments? etc…The second possible reason is that there is “some other good reason” why the judgment should be set aside or you should be allowed to defend the claim. In this case the “other good reason” would be that you simply did not have chance to consider the claim and submit a defence.Other points to note are: (i)   You do not have to prove and evidence both arguments – only one, but it makes sense to have cases for both if you can.(ii) You should have evidence to support your application, which in this case will probably be a written witness statement. (iii)  You may want to consider putting in your application that any enforcement action is “stayed” (put on hold) until the Court has had chance to consider and hear your application, as otherwise you may face enforcement (i.e. a visit from a Bailiff or similar) whilst the Court is dealing with your application.An application to set Judgment aside should be made using a standard Application form (Form N244), obtainable from your local County Court or at the website of Her Majesty’s Court Service (www.hmcourts-service.gov.uk). This needs to be sent to the Court along with the witness statement explaining why you believe judgment should be set aside and a court fee, currently £75.00. Sadly you may not be able to recover this fee.You can also consider asking the Court to use its discretion to set aside judgment without a hearing at the Court, but it is likely that you will indeed end up having to attend a relatively short hearing in person to explain your position.One way or another if the Court agrees that it is not right that a judgment should have been entered, it will be set aside. However, as discussed above, you will still be in the position of having the original claim against you and so you will have to deal with that as well, although the clock will be reset from that point. That will leave you with time to consider your next steps, whether that be to speak to the claimant, prepare your case (such as obtaining Representatives Reports or information from your suppliers) or seek further legal advice.[It should be said that there are rare occasions where a Court is constrained to set judgment aside automatically (such as where the Claimant has applied for Summary Judgment too hastily or there has been a general misadministration by the Court) and in those situations there are thankfully not so many hoops to jump through and a greater chance of having your fee returned to you.]SummaryReceiving notification that you have a default judgment against you is not great news, but is not cause for panic!:

• You should act promptly.
• You should assess whether it is right and worthwhile to apply for Judgment to be set aside.
• If you do, you should complete form N244 and, taking into account CPR 13.3, send that along with a witness statement setting out your reason(s) for wanting the Judgment set aside to the Court along with the Court Fee.
• You should be ready to go along to your local County Court to put your case forward if needed.
• You should also be prepared to then deal with the claim itself if you are successful or consider your next steps if you are not.

Matt Gatenby
Travlaw LLP Solicitors
Matt@Travlaw.co.ukwww.travlaw.co.uk 

 Here’s a note of some of the recent developments in the HR and Employment field which we hope you’ll find useful. As always, if you have any comments or queries then please do not hesitate to give me a ring on 0113  2580033, and I will be more than happy to give you a free steer about how to tackle these issues. 1.      Increase in Employment Tribunal ClaimsThe full depth and severity of the recession and its knock on effects on the employment landscape have been revealed in a recent report published by ACAS:-

• Recession has stimulated a 29% rise in unfair dismissal cases!! (Make sure you are following all disciplinary and grievance procedures to avoid the impact of any potential claims.)
• Other employment tribunal cases have also increased. Ensure you have up to date contracts and documentation- ‘prevention is cheaper than the cure.’
• Demand for redundancy advice has increased by almost three quarters.

2.      Breaking News!! – ‘Additional paternity leave consultation announced’

The Government has confirmed their intention to go ahead with plans for new legislation which will allow fathers to benefit from up to six months’ additional paternity leave if the mother returns to work before the end of her ordinary maternity leave period to which she is entitled. It will apply to parents which children due on or after 3 April 2011.    Current position·       Mothers can take up to 52 weeks’ statutory maternity leave.·       statutory maternity pay being payable for up to 39 weeks.·       Fathers are entitled to two weeks’ paternity leave during which statutory paternity pay is payable.New Proposal·       If mothers go back to work at any time after the first 26 weeks, fathers will be able to take the balance of the 52 week period of maternity leave as additional paternity leave.·       Three months will be paid at the same rate as statutory maternity pay if the leave is taken during the mother’s 39-week maternity pay period.Consultation will begin shortly…… watch this space.

3.      Please Note!! –There has been an Increase in statutory redundancy pay!

As of 1 October 2009, the weekly limit for earnings used to calculate statutory redundancy pay has increased from £350 to £380. The new revised limit is expected to remain in place until February 2011.    

Thanks for taking the time to read this update! Watch out for our Winter Newsletter- coming soon!

For more information  please contact Charlotte@travlaw.co.uk

The Advocate General has today delivered an opinion in which he considers that Google has not infringed trade mark rights by allowing advertisers to buy keywords corresponding to registered trademarks. In it he said:-Because when selecting keywords, there is no product or service sold to the general public, the mere selection cannot be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks (as is required by the trademark legislation). Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords, keywords corresponding to trade marks.The legislation requires that there be a risk of confusion on the part of consumers as to the origin of goods or services and the mere display of relevant sites in response to keywords is not enough to establish such a risk.

He went on to say that trade mark rights cannot be construed as ‘classical property rights’ enabling the trade mark owner to exclude any other use even if it involves a trade mark which has a reputation.  

The Advocate General’s Opinion is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the European Court of Justice are now beginning their deliberations in applicable cases which will usually be binding on the English Courts.We have no doubt that the effects of this opinion on the travel industry will be significant and negative particularly in the light of yesterday’s publication in The Great Online Holiday Hijack 2009 - The Gloves Come Off, of the Nucleus survey of travel companies, where 80% of the brands surveyed said they were victims of brand hijacking where one online advertiser pays to intercept search enquiries for a competitor brand, often using their brand name as a keyword.  

For more information or advice, email me or charlotte@travlaw.co.uk.  

Further to the information we gave you last week about ABTA’s proposed extensions to Members’ responsibilities for consumer’s money paid for travel arrangements, ABTA have clarified their intentions a little. They have said:-‘The proposal is that any ABTA Member supplier, whether acting as principal or agent, who sells to a customer through a travel agent should be responsible for that customer’s money in the event that the travel agent fails before payment has been passed on to the supplier.’ They go on to say;‘The proposal addresses a new phenomenon seen in the market where travel agents have failed holding significant amounts of customer money, and the supplier whose product they were selling consequently refuses to fulfill the customer’s booking.’We are grateful for this clarification but are still unsure about the exact meaning of the phrase ‘accept responsibility for such monies’ in the first of ABTA’s proposals: is it intended to mean that Members’ bonding requirements will be extended; or that a non-packaging Member acting as a retail booking agent could be liable for the acts and omissions of the supplier of the arrangements? If the proposal is intended only to deal with pipeline money, we agree with ABTA when they go on to say that the proposal broadly mirrors the existing law and so will also apply to non-members; but we do think that the proposed ABTA change may have a slightly further reach than the common law would in respect of an agent selling through another agent.  We would welcome further clarification from ABTA and also your own thoughts and feedback.  Drop me an email!Sarah