Eversfield Preparatory School Trust Ltd v Diverse World Ltd (t/a Diverse School Travel) [2025] EWCC 33

Mr Adam Riley on the appeal and Mr Rory Turnbull on consequentials (instructed by Kennedys) for the Respondents

HHJ TINDAL

The Issue

• This is a County Court appeal in a Fast Track claim where the Appellant school claimed a refund of £15,176.25 (plus interest) from the Respondent travel agency. This was the cost of a school trip to Barcelona booked for 11^th – 15^th May 2020, cancelled on 1^st April 2020 due to the COVID Pandemic. A Deputy District Judge (‘the DDJ’) dismissed that claim on 4^th October 2024 in an oral judgment.

• Ordinarily, such a claim and appeal would be of little wider interest. However, I have reserved, published and authorised to be cited this judgment for three reasons:

(1) The appeal raises an issue which specialist Counsel – Mr Kennedy for the Appellant and Mr Riley for the Respondent – report is regularly taxing judges in County Courts. Because most of those judgments are not published, County Court judges have taken different approaches, which I will review to endeavour to summarise current County Court authority.

(2) Secondly, another reason for divergence is the absence of any High Court or Court of Appeal cases on the issue. ((1) and (2) together permit citation of a County Court judgment under p.6.2 of the Citation Practice Direction).

(3) Thirdly, this case raises a new point of principle under para.6.1 of the Citation Practice Direction: namely the status in the County Court of post-Brexit EU Court of Justice (‘CJEU’) decisions, which are not binding on any domestic court under ss.6(1)-(2) EU Withdrawal Act 2018 (‘EUWA’). Here, all the relevant CJEU cases were decided after Brexit was implemented by the EUWA on 31^st December 2020 (‘I/P completion day’). So, we have the remarkable situation of an abundance of County Court and CJEU decisions, but no binding domestic or EU authority at all. How are County Judges to choose between ‘persuasive’ decisions of their colleagues and ‘persuasive’ decisions of the CJEU ? Are those equally ‘persuasive’ ?

• The case concerns the Package Travel and Linked Travel Arrangements Regulations 2018 (‘the 2018 Regs’), implementing into domestic law the Package Travel Directive 2015/2302 (‘the 2015 Directive’). Reg.12(7) 2018 Regs states:

“…in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect — (a) the performance of the package, or (b) the carriage of passengers to the destination, the traveller may terminate the package travel contract before the start of the package without paying any termination fee.”

• Some County Court decisions (such as the one under appeal) have suggested Reg.12(7) entails a ‘causation test’ in the sense of asking whether ‘but for’ the ‘extraordinary and unavoidable circumstances’ at the place of destination – as opposed to the place of departure – the package would not have been cancelled. Other County Court decisions (arguably again including that under appeal) have suggested that Reg.12(7) entails instead (or as well) a ‘reasons test’ in the sense of asking whether the ‘extraordinary and unavoidable circumstances’ at the place of destination are the actual (or at least the stated) reason for the cancellation. The Appellant argues that both the ‘causation test’ and the ‘reasons test’ are incorrect.

• Instead, the Appellant relies on other County Court decisions which it suggests mean that to some extent, Reg.12(7) enables a Court to use hindsight; and to take account of British Government guidance advising against travel abroad. The Respondent, in common with the DDJ below, contends both arguments are wrong.

• The Appellant also relies on a County Court decision by HHJ Malek in Our Lady & St John’s Catholic College v Acorn Travel Group [2025] EWCC 6, where he rejected the ‘causation test’ and the ‘reasons test’ and applied to Reg.12(7) 2018 Regs essentially the same approach to Art.12(2) of the 2015 Directive of the CJEU in QM v Kiwi Tours [2024] Bus LR 1045. So, I referred Counsel to QM and another CJEU decision which it cited: MD v Tez Tour [2024] Bus LR 1024. However, the Respondent argues at least part of QM and Our Lady are wrong and the decision of HHJ Salmon in John Masefield v Voyager School Travel (2025) is right.

• As the Appellant’s alleged cause of action arose in April/May 2020 – before I/P Completion Day – the effect of s.3 EUWA was to preserve that alleged cause of action as ‘Retained EU Law’ after 2020: Lipton v BA CityFlyer [2024] 3 WLR 474 (SC). So, the relevant version of the 2018 Regs (and EUWA) was that at the time, not as amended (e.g. by the Retained EU Law (Revocation and Reform) Act 2023 (‘REULA’). Anyway, Reg.12(7) 2018 Regs has not been amended since 2018.

• However, as they arose from the Pandemic from 2020, the trio of CJEU decisions on Art.12 Directive – MD, QM and GF Schauinsland-Reisen [2025] Bus LR 508 which Counsel cited concerning a different part of Art.12 Directive – were all decided after I/P Completion Day. MD and QM were both decided on 29^th February 2024 and GF on 4^th October 2024 (ironically the same day as the DDJ’s decision under appeal). Likewise, I will touch briefly on three other CJEU decisions of less direct relevance to Art.12(2) 2015 Directive, all decided in 2023. This unusual situation prompted me when writing the judgment to consider the wider issue of the relative ‘persuasiveness’ of County Court and CJEU decisions. (Neither Counsel took the opportunity to disagree or to make submissions on my analysis on this).

• It may assist if I summarise my conclusions on this appeal right at the start:

(1) Firstly, I agree with HHJ Malek in Our Lady that Reg.12(7) 2018 Regs asks three questions, assessed as at the date of cancellation, without hindsight:

i. Where was the ‘place of destination or its immediate vicinity’ ?

ii. Whether at that destination/vicinity at the date of cancellation there were occurring ‘unavoidable and extraordinary circumstances’ ?

iii. If so, did those circumstances at the cancellation date ‘significantly affect’ performance of the particular upcoming package (or carriage of passengers to the destination) ?

(2) I also agree with HHJ Malek in Our Lady – and (albeit only partly) disagree with HHJ Salmon in John Masefield – that not only the ‘causation’ test, but also the ‘reasons’ test are each impermissible glosses on Reg.12(7).

(3) I consider this is also consistent with EU Law explained in MD, QM and GF

(4) The DDJ below strayed into legal error in some – but not all – respects.

(5) On the undisputed primary facts before the DDJ, when applying the correct legal test, the claim should succeed in full. So, I will allow the appeal.

Continue reading this Judgment here.