SHERMAN VS READER OFFERS LTD (ROL) hurdle. The true test is that there is ‘not a reasonable possibility’ of the holiday proceeding. How much difference that makes in practice remains to be seen. These tests have been important in all the Covid cancellation cases – the same test must logically apply to the right of the consumer to cancel a package, without forfeiting cancellation charges, under Reg 12(7) of the 2018 PTRs [Article 12.2 of the 2015 Directive] - as well as cruises and many other scenarios (Caribbean hurricanes, for example). f.Damages and compensation So the Court of Appeal confirmed that the case should go back to the County Court for damages and compensation to be assessed. But they gave significant guidance to the County Court as to the right approach to be taken. Lord Justice Males said:-. The question will then arise whether, if they had been given that information [full detail of the itinerary change and their rights], they would have chosen to cancel. Mr Sherman was adamant in submissions to us that they would have done so, but that is not a point which we can decide. Disappointed and annoyed as they were, Mr and Mrs Sherman had come as far as Montreal and met up with their friends Mr and Mrs Maguire, and they did in fact choose to proceed after hearing what Hurtigruten had to say on the evening of 9th September, although two couples in the party chose to leave. So it is not a foregone conclusion. There will need to be evidence. If the Court concludes that Mr and Mrs Sherman would have cancelled, they will be entitled to a refund of what they paid, together with some compensation for disappointment at the loss of their holiday, but such compensation will be modest, bearing in mind that disappointment is transitory and that the offer of a refund would have gone a considerable way to assuage their feelings (cf. Milner v Carnival Plc [2010] EWCA Civ 389, [2010] PIQR Q30). They could also have been expected to understand, as reasonable people, that the reason why the cruise had to be curtailed was not due to any bad faith or incompetence on the part of ROL ……….., but was simply bad luck as the ice conditions were worse than in previous years. Moreover, if they had chosen to cancel, they would have found themselves in Montreal, which for them was the departure point, and would have to pay for their flights back to London. Credit for this cost would therefore have to be given against the refund of the full price of the holiday.
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