In a recent decision the Birmingham County Court gave guidance as to the meaning of ‘extraordinary circumstances’ within the meaning of the Package Travel and Linked Travel Arrangements Regulations 2018, derived from the Package Travel Directive 2015/2302, in the context of a Covid-19 refund claim. In doing so it considered the status in the UK following Brexit of the judgments in this area of the Court of Justice of the European Union.

Readers will be aware that the English and Welsh legal system rests on the common law, and as such operates a system of precedence, deriving its law from previous court decisions. The decision in Eversfield, being a decision by a County Court judge on appeal, is not binding, but is persuasive – as indeed are the decisions of the CJEU following Brexit.

The Facts

The facts of the case are not unusual and will be familiar to scholars and litigators throughout Europe and indeed the world.

In May 2019 the school arranged with the defendant tour operator for the latter to provide a school trip to Barcelona for a group of 38 children aged ten or eleven, and four members of staff. The trip was to take place between 11^th and 15^th May 2020 and included excursions to a water park, FC Barcelona’s Nou Camp stadium, the Catalan National Art Museum, the traditional Catalan theme village Poble Espanyol, the Castell de Montjuic on the hill overlooking the city, a Flamenco experience, Gaudi’s Parc Guell and markets, parks and the old port of Barcelona. The tour operator’s standard contract applied and provided for a cancellation fee on a sliding scale before the trip: ten weeks or more before, only the deposit and payments due, 22 days to 10 weeks 75% of the total price and up to 21 days, 100% of the price. The school agreed a price for the trip of £20,235 in total, to be paid in three instalments: the deposit of £3000 in May 2019, £4,047 in November 2019 and £13,188 on 25^th February 2020.

By the time the last payment was due, however, there was increasing concern in the UK and in Spain regarding the oncoming Covid-19 pandemic; and on 12^th March the Department of Education issued guidance to schools to the effect that they should not undertake foreign trips until further notice. The following day the Association of British Travel Agents issued the following advice in response:

“Our current understanding of the situation regarding school trips is as follows. The Government has advised schools they should not undertake international school trips at this stage, This is due to concerns that the schools would face significant challenges in making arrangements to ensure children’s welfare should adult supervisors be required to self-isolate. Schools will decide how to act upon this advice. If schools do cancel their trips, normal cancellation terms will apply. Schools should contact either their own general insurers or the Department of Education as they may have some financial cover in place for this scenario. This is one of the areas we are seeking clarity on urgently so we will update again as soon as we have more information.”

On 17^th March 2020 the Foreign and Commonwealth Office advised against all but essential travel abroad; on 20^th March, the DoE announced the closure of all UK schools, and on 23^rd March, the UK entered the first Covid-19 lockdown.

On 1^st April the school cancelled the trip. There was no detailed evidence before the court as to why it took this decision, but the judge at first instance held that:

“it was a combination of factors that led to the school to cancel the contract…It was partially the guidance being given by the Government and by ABTA, it was partially the fact that [the children] were not in school; and it was partially because the Pandemic was simply not subsiding as it had been hoped it might have done.”

At this time both Spain and the UK were in lockdown, but it was not at that point certain that the lockdowns would continue until 11^th May, when the trip was due to commence.

Under the standard cancellation terms of the contract, as the cancellation was more than 21 days before the trip, 75% of the price was payable, namely £15,176.25, which the tour operator retained, refunding the school £5,058.75 on 11^th June 2020. The school sued for the balance of £15,176.25.

On 4^th October 2024 the Deputy District Judge dismissed the school’s claim. In doing so she considered the meaning of Regulation 12(7) of the Package Travel and Linked Travel Arrangements Regulations 2018, which 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.”

Although it is not entirely clear from the judgment, the Deputy District Judge seems to have held that this provision was to be interpreted as incorporating a causation test: in order to succeed in its claim for a refund the school was required to show that the unavoidable and extraordinary circumstances had caused the cancellation, and that this was the reason for it.

The school appealed. The judge on appeal had to grapple with the fact that there were previous County Court authorities to the effect that such a causation test was the correct one (cf for example John Masefield v Voyager School Travel (2025)) and others stating the opposite (cf Our Lady & St John’s Catholic College v Acorn Travel Group [2025] EWCC 6); furthermore, there were also decisions of the Court of Justice of the European Union in support of the school’s legal submissions (cf QM v Kiwi Tours [2024] Bus LR 1045, MD v Tez Tour [2024] Bus LR 1024 and GF Schauinsland-Reisen [2025] Bus LR 508), but none of these authorities was binding on the judge, either at first instance or on appeal.

The Decision on Appeal

At paragraph 36 of the judgment on appeal His Honour Judge Tindal sets out the (rather complex) position as regards order of precedence in England and Wales following Brexit:

“(1) Firstly, the County Court is bound by EU Law, including CJEU decisions, as they stood at the end of 2020 (s.6(3) [of the EU (Withdrawal) Act 2018]). This means the domestic legislation should be interpreted consistently by ‘indirect effect’ with EU Law as it stood at the end of 2020, as it was before Brexit as in Swift. In Lipton, this was an established line of CJEU cases on airlines compensation for delay;

(2) Secondly, the County Court is not bound by new EU Law, including CJEU decisions, since the start of 2021, but may take those cases into account.

(3) Thirdly, a post-2020 CJEU decision may actually reflect and evidence the state of EU Law at the end of 2020 – e.g. if it just applies a principle well-established before 2021. In that situation, arising in Lipton and TuneIn, the actual principle is binding and whilst the new CJEU case is not binding, it may be highly ‘persuasive’ (to use the expression used in Lipton [v BA CityFlyer [2024] 3 WLR 474] at [158]).

(4) Fourthly, to the extent that a post-2020 CJEU case develops a new principle which was not part of EU Law as it stood at the end of 2020, the new CJEU case may be less ‘persuasive’ and subject to any contrary binding domestic authority, even if decided prior to 2021, as in Umbrella Interchange.

(5) Finally, if an EU directive was implemented in domestic legislation before 2021 but there are no CJEU decisions on that directive until after 2020, the directive itself is binding and the domestic legislation must be interpreted consistently with it (as in Swift [v Robertson [2014 1 WLR 3438]). However, the post-2020 CJEU decisions are not binding. So, the County Court remains bound by any previous binding domestic authorities on the directive from the High Court upwards.”

HHJ Tindal concluded that the caselaw of the CJEU was not binding upon him, but was highly persuasive. He derived the following principles from a consideration of the decisions of the CJEU considering the 2015 Directive:

“(1) The 2015 Directive, reflected in Recital 5, balances a high level of consumer/traveller protection and business competitiveness. But the CJEU regularly emphasises the importance of traveller protection (e.g. in Art.1 / Que Choisir [2024] 1 CMLR 43] at [50]) and for Art.12(2) (MD at [61]/[78]; QM at [43]-[45]).

(2) Art.12(2) requires objective proof of ‘unavoidable and extraordinary circumstances’ at the destination or its immediate vicinity. However, a global health crisis such as the COVID Pandemic ‘must as such be regarded as capable of falling within the scope of’ a ‘destination UEC’ if it is occurring at the destination as at cancellation, whether or not there are travel or other official restrictions there. (These have evidential value, but are not definitive either way, but are otherwise for the national court to determine) (See Que Chosir at [45]; MD [v Tez Tour [2024] Bus LR 1024] at [37]-[43], [86] and [94]; GF [v Schauinsland [2025] Bus LR 508] at [35]-[45]).

(3) Whether there is such a ‘destination UEC’ must be assessed as at the date of cancellation itself, irrespective of events which then followed, or the benefit of hindsight as to whether the trip could have later actually gone ahead on the planned date (QM [v Kiwi Tours [2024] Bus LR 1045] at [26]-[48]; GF at [55] – also see MD at [64]-[65]).

(4) Whether that ‘destination UEC’ at that time ‘significantly affects the performance of the package or the carriage of passengers to the destination’ is also assessed at the date of cancellation without hindsight of later events, but prospectively and objectively. Whilst the package holiday need not be objectively impossible (MD at [48], [64-7]), it is appropriate to ask the question in QM at [32]: ‘whether an average traveller, who is reasonably well informed and reasonably observant and circumspect, could reasonably take the view that the unavoidable and extraordinary circumstances relied on by the traveller concerned would probably have consequences significantly affecting the performance of his or her package or for the transfer of passengers to the travel destination’ (see also GF at [54]).

(5) Whether the ‘destination UEC’ ‘significantly affects the performance of the package or carriage of passengers to the destination’ can take into account the circumstances on cancellation in the departure state or en route; and/or objectively proven personal circumstances of travellers (MD at [62]/[94]).”

The learned judge went on to hold that:

“…all five propositions reflect a balanced, careful and consistent approach to Art.12(2) by the CJEU, the unquestioned authority and expert on EU Law, based on objectively-provable conditions and a practical approach to evidence, which protects travellers whilst enabling travel companies to fulfil their obligations efficiently and fairly…” 

The rationale behind the judge’s decision to allow the appeal is to be found at paragraph 54 of the judgment:

“Beyond the five propositions, I agree with HHJ Malek in Our Lady and HHJ Salmon in John Masefield that Art.12 does not pose a ‘causation test’ requiring the cause of cancellation to be the criteria in Art.12(2): even to balance business competitiveness with traveller protection. Art.12(2) already balances those with two objective ‘preconditions’ for a full refund (or ‘conditions precedent’ as HHJ Salmon put it) i.e. (i) a ‘destination UEC’ (ii) ‘significantly affecting’ performance or carriage:

(a) On wording, as HHJ Salmon said in John Masefield at [21], there are no words requiring a causal link between those ‘conditions precedent’ and cancellation. [Counsel for the tour operator] accepted the phrase ‘in the event of’ is not the language of causation in the sense that ‘the conditions caused the traveller to terminate’. It is the language of precondition: ‘provided the conditions precedent are made out, a right to terminate exists’ as HHJ Salmon put it at [24]. Indeed, the CJEU in QM at [27] referred to ‘destination UEC’ and ‘significant effect’ as a ‘condition’. One could debate whether they are one ‘condition’ or two, but they are clearly expressed to be conditions for the exercise of a right, not causes for its exercise.

(b) On context, Art 12(2) is an exception to Art.12(1), which gives an unfettered right of cancellation with a fee. So, what engages the extra right in Art.12(2) is the two objective preconditions of a ‘destination UEC’ and ‘significant effect’. A travel company is well-placed to determine whether those two conditions objectively apply at the destination at the time of cancellation (indeed as it is their business, better-placed than a traveller), so as to require a refund within 14 days under Art.12(4). But the company cannot easily investigate in 14 days whether those conditions were the cause of cancellation by a particular traveller.

(c) This ‘condition not causation’ approach has a fairer balance between traveller protection and business competitiveness. It is ‘swings and roundabouts’ that the traveller posited by HHJ Malek in Our Lady at [33] who cannot go on a ski trip after earlier breaking a leg still gets a full refund due to a ‘destination UEC’ ‘significantly affecting’ the package (e.g. extreme weather in Switzerland); but the business traveller whose conference next to Geneva airport is unaffected by that ‘destination UEC’ cannot. As the CJEU said in MD, the issue is whether the ‘destination UEC’ has a significant effect on the particular package.”

Furthermore, HHJ Tindal rejected a ‘reasons test’ requiring the traveller to state as his or her reason for cancellation the unavoidable and extraordinary circumstances at the place of destination. The Directive mandates no such test, and it would place too great a burden on the traveller. The only questions for the court when considering a Covid-19 (or indeed any other) refund case under Regulation 12(7) are therefore:

• Where was the place of destination or its immediate vicinity?
• Were there occurring at that destination at the time of cancellation ‘unavoidable and extraordinary circumstances’ (i.e. a ‘destination UEC’) ?
• Did the ‘destination UEC’ at cancellation ‘significantly affect’ performance of the particular upcoming package (or passenger carriage to destination) ?

All of these questions are to be answered objectively, although the third may take into account circumstances personal to the traveller, such as a particular desire to undertake some particular activity.

Comment

The judgment in Eversfield Preparatory School is intended by the learned judge to provide litigators with a useful guide to the CJEU and domestic authorities and with a summary of the principles to be derived from them. In this the judge has succeeded admirably; he has provided practitioners in this area with three simple objective questions to be asked and answered in each of these cases. Legal scholars throughout the EU will also be interested to note the statement of the law derived from CJEU caselaw, as well as the interesting discussion around the status of that caselaw within the UK jurisdiction following the decision of the Supreme Court in Lipton v CityFlyer. It is to be hoped that this decision will clarify the law in this area such that no further argument will be necessary – regrettably, however, the author rather doubts that this will be the final word on the subject.

Sarah Prager KC

7/7/25