UNITED KINGDOM | SARAH PRAGUER 811 7. COVID-19 The year 2020 was not just notable for Exit Day on 31 December, of course; the other dominant theme in the tourism sector, as in all areas of life, has been the COVID-19 pandemic and the measures taken to contain it. The UK Government imposed some of the strictest lockdown measures in the world and, as a result, for much of 2020 and early 2021, the tourism industry came to a complete standstill. Estimates vary, but the industry is thought to have lost some 40 billion pound sterling (around 47 billion euros), an unimaginable sum. At the time of writing, it is still uncertain whether the 2021 Summer season can be saved, following the decimation of the 2020 Summer and Winter seasons, as well as the 2021 Spring season. It is too early to draw any conclusions about the response of the UK courts to the pandemic and its effect on the industry. There are presently a very large number of cases proceeding through the courts, many of which raise issues around cancellation and refunding under the Package Travel and Linked Travel Arrangements Regulations 1998 and Regulation (EC) No 261/2004 (the ‘Denied Boarding Regulation’), which remains in force notwithstanding Brexit. Cancellation of touristic services not falling within these Regulations are governed by the general provisions to be found in S. 1(2) of the Law Reform (Frustrated Contracts) Act 1943, which provides that any contractual prepayments are recoverable: “(…) All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged…shall, in the case of sums so paid, be recoverable from him (…)”. However “(…) if the party to whom the sums were so paid or payable incurred expenses before the time of discharge in, or for the purpose of, the performance of the contract, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred” This is a fairly typical piece of English legislation in that it provides a framework within which the courts have a wide discretion to do justice between the parties, so that a consumer bargaining with a business acquires a higher level of protection than a business engaging in a business-to-business contractual relationship.
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