UK Supreme Court asks CJEU for clarification of package organiser liability for suppliers

Michael Wukoschitz's picture

In 2010 Mrs X and her husband entered into a contract with the tour operator Kuoni under which Kuoni agreed to provide a package holiday in Sri Lanka. In the early hours of 17 July 2010, Mrs X was making her way through the grounds of the hotel to the reception. She came upon a hotel employee, N, who was employed by the hotel as an electrician and (on the facts found by the judge) known to her as such. N was on duty and wearing the uniform of a member of the maintenance staff. N pretended to show her a shortcut to the reception but lured her into the engineering room where he raped and assaulted her.

Mrs X claims damages against Kuoni by reason of the rape and the assault.

In the High Court,HHJ McKenna concluded that the contractual undertaking that “holiday arrangements”would be of a reasonable standard did not include a member of the maintenance teamconducting a guest to reception. He further held that Kuoni would in any event have been able to rely on the statutory defence under regulation 15(2)(c)(ii) because the assault was an event which could not have been foreseen or forestalled (by inference by the hotel) even with all due care.

The Court of Appeal (Sir Terence Etherton MR, Longmore and Asplin LJJ) dismissed the appeal by a majority (Longmore LJ dissenting). In a joint judgment, the majorityheld thatthe holiday arrangements did not include N conducting Mrs X to reception.The majority further heldthat Kuoni was not liable under either the express terms of clause 5.10(b) or regulation 15 since N was not a “supplier” within the meaning of those provisions.

The Supreme Court referred the following questions to the Court of Justice of the European Union:

(1) Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which the Directive applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates:

(a)is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so,

(b)by which criteria is the national court to assess whether that defence applies?

(2) Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which the Directive applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a “supplier of services” for the purposes of the defence under article 5(2), third alinea of the Directive?

Source: Supreme Court press summary of 24 July, 2018 on case X v Kuoni Travel Ltd [2019] UKSC 37

Full text of judgement avialbale here: >> https://www.supremecourt.uk/cases/docs/uksc-2018-0102-judgment.pdf

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