The Package of Theseus: Successive variations to the package travel contract under the Package Travel Regulations

The Package Travel and Linked Travel Arrangements Regulations 2018 (“the Regulations”) provide a workable framework for when an organiser wishes to make a single pre-departure change to a package holiday. In sum, Regulation 11 distinguishes between 1) insignificant changes, which may generally be made unilaterally by the organiser, and 2) significant changes, which entitle the traveller to choose whether to accept the amended package or terminate the contract.

The Regulations are much less clear, however, where there is more than one change.

If a traveller agrees to an initial significant variation under Regulation 11, and the organiser later makes a further, seemingly minor, amendment, but is the “final straw” for the traveller who now wants to cancel the entire holiday, can they? What about when the organiser makes a series of individual minor/insignificant changes before departure? At what point is the traveller entitled to walk away from the contract?

The answer under the Regulations is unclear, yet important where package travel organisers are frequently required to make changes to holiday itineraries before departure whether due to airline scheduling issues, supplier availability, or other operational pressures.

Statutory framework

The Regulations contain a number of provisions governing changes to the itinerary:

• Regulation 5 requires organisers to provide prescribed pre-contract information, including the travel destination, the characteristics and category of transport, departure and return dates and times, the duration of the holiday, and any intermediate stops and transport connections.
• Regulation 6 provides that this pre-contract information forms an “integral part” of the package travel contract and must not be altered.

Once the itinerary has been provided, and the contract formed, Regulation 11(2) then sets out that an organiser may only unilaterally amend the itinerary where:

• the contract expressly reserves the right to make the change;
• the alteration is insignificant; and
• the traveller is informed of the change in a clear, comprehensible and prominent manner on a durable medium.

Where the organiser needs to make a significant change to one of the main characteristics of the package due to circumstances beyond their control, Regulation 11(3) sets out that the traveller must be given a reasonable period in which to decide whether to accept the proposed variation or terminate the contract and receive a full refund. Where appropriate, the traveller may also be entitled to accept the amendment alongside a price reduction.

In short, the key distinction under the Regulations is between insignificant changes, which may be imposed unilaterally, and significant changes, which require the traveller’s consent.

What is a “significant change”?

The regulations do not define what constitutes a “significant” change, and the authorities offer only limited guidance. However, examples which are unlikely to amount to significant changes include:

• Substituting accommodation of a similar standard or classification;
• Reordering destinations within an itinerary where the overall holiday remains substantially the same; and
• Short delays to flight departure times (In Williams v Travel Promotions Ltd (t/a Voyages Jules Verne) [1998] 2 WLUK 408, a delay of less than 12 hours was held not to amount to a significant change).

The assessment of what constitutes a “significant” change is necessarily fact-sensitive. For example, a six-hour delay on a beach holiday may have very different consequences from the same delay on a tightly scheduled wildlife tour.

The main difficulty arises where the organiser makes several changes over time.

Let’s take for example a two-week holiday in Patagonia originally including a full-day white water rafting excursion, a five-day cruise through the Drake Passage, and several guided wildlife excursions.

A few weeks before departure, the organiser informs the traveller that the full-day rafting excursion will instead last half a day because of local operational constraints. Although disappointed, the traveller accepts the change.

A week later, the organiser advises that road closures mean one of the many national park visits will no longer take place and will be replaced with an optional mountain biking trip. Again, the traveller reluctantly accepts the change.

The organiser then unilaterally makes a minor amendment to the running order of some of the activities.

Shortly afterwards, the departure flight is rescheduled to 6 hours later, requiring the first evening’s activities to be cancelled.

Taken on its own that last amendment might reasonably be characterised as “not significant” under the Regulations, falling below that 12-hour threshold, and therefore not requiring the traveller’s consent. The traveller, however, reasonably feels differently. After having reluctantly already accepted two earlier changes, and having had a minor amendment already imposed on them, this further change feels like the final straw leading them to wonder whether the holiday can really be said to resemble the itinerary originally booked and whether they can now cancel.

The unanswered question essentially boils down to whether significance of each change to be assessed against the original package sold to the traveller or against the latest version of the amended itinerary.

Two possible answers

One answer likely to be used by Defendant organisers is that Regulation 11 does not alter the ordinary principles of contract law, and that once the traveller agrees to a variation, the contract is amended by agreement. The amended package contract therefore becomes the baseline contract between the parties, and any subsequent question of significance falls to be assessed against that revised contract, the original itinerary having been superseded.

The competing view, likely to be taken by Claimant travellers, will be that that approach would undermine the purpose of the Regulations, namely to provide consumer protection. If every accepted variation becomes the new baseline, an organiser could progressively erode the substance of the holiday through a succession of individually minor or tolerable changes, none of which, viewed in isolation, is sufficiently significant to trigger the traveller’s right to terminate. The only way to give meaning to the Regulations must be to assess amendments by reference to the cumulative effect of the changes, measured against the holiday originally purchased rather than each successive version of the contract.

The latter approach, however, creates some obvious practical difficulties for organisers, who may never be entirely confident that a traveller’s consent to a particular change provides sufficient certainty to justify incurring the costs of implementing it. Such consent may later be treated as artificial if a subsequent, seemingly minor change is enough to tip the balance and entitle the traveller to terminate the contract altogether, potentially discouraging organisers from proactively seeking consent and updating itineraries in real time.

Conclusion

The ambiguity is more than academic, with organisers who assess each change in isolation potentially carrying more litigation risk than they realise, if the changes are later viewed cumulatively. Conversely, travellers who readily accept a series of variations may later find that doing so limits their ability to terminate the contract when faced with a further amendment.

Until this is resolved, organisers should proceed on the more cautious assumption that a court may assess the significance of changes cumulatively and by reference to the original itinerary, rather than assume that each accepted variation resets the baseline.

As with Theseus’s ship, the question for organisers is not whether any single excursion, hotel, or departure time can be swapped out, but how many can be changed before what the traveller receives is, in truth, a different holiday from the one they booked.