Success in European Court of Justice for package holiday claimant

The ongoing case of X v Kuoni involves a holidaymaker who went on a package holiday to Sri Lanka.  At night, she came upon a hotel employee, N, who was employed as a hotel electrician and on duty. N offered to show her a shortcut to reception and then lured her into the engineering room where he raped and assaulted her. X brought a claim for damages against the tour operator and lost at first instance and in the Court of Appeal. The Supreme Court, in X v Kuoni [2019] UKSC 37 referred to Europe two questions, the first of which was:

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 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours 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?

In X v Kuoni Travel Ltd Case C-578/19, the CJEU held that the hotel was a supplier of services and that the tour operator cannot be exempted from its liability arising out of improper performance of its obligations where the improper performance is the result of the actions of an employee of the hotel.

That is a result which entirely supports the claimant’s case so long as the Supreme Court does find that there was a link between the employee’s conduct and the tour operator’s obligations arising from the package travel contract.

The case will now be remitted to the Supreme Court.

Robert Weir QC acted for the claimant with Katherine Deal QC of 3 Hare Court, instructed by Phil Banks and James Riley of Irwin Mitchell solicitors.

A copy of the CJEU judgment can be accessed here.

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