The Gazette 1991

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g a z e t t e m a r c h 1991
Correspondence
Editor,
Law Society Gazette,
Law Society,
Blackhall Place,
Dublin 7.
17th December 1990
Re: Irish Travel Agents Association
Arbitration Scheme
Dear Sir,
Many colleagues will have ex-
perienced the difficulties which
arise when an unfortunate con-
sumer, who has travelled abroad,
and has found his holiday to be
disrupted and has subsequently
sought compensation from the
Travel Agent, only to find that the
travel agent seeks, in the first
instance, to have the matter
referred to arbitration, pursuant to
the terms of the booking contract,
and secondly that the arbitration is
held in accordance with the terms
as set out in the Irish Travel Agents
Association Arbitration Scheme.
This scheme, inter alia, seeks to
limit the liability of the Defendant,
to a sum of not more than £5,000
and f u r t he rmo re spec i f i ca l ly
excludes any claim for personal
injuries. In addition the explanatory
note accompanying the rules of the
arbitration scheme specifically
state "parties to a dispute are en-
couraged not to seek legal repre-
sentation for such hearings, though
they may do so if they wish".
On Tuesday 11th December 1990
Carroll J in the High Court,
delivered an ex tempore judgment
in the matter of McCarthy & Ors.
-v- Joe Walsh Tours Limited and
held, inter alia, that the provisions
of The Sale of Goods and Supply of
Services Act 1980 applied to the
contract the subject matter of the
dispute, and that as Section 39 of
that Act implies:
a. that the defendant has the
necessary skill to render the
service
b. that the defendant would supply
the service with due skill care
and diligence.
and this implied term has no
limitation on its liability.
Furthermore as Section 40 of the
Statute only allows an implied term
to be varied or negatived by an ex-
press term of the Contract, inter alia,
provided that where the recipient of
the service deals as a consumer it
must be shown that the express
term is both fair and reasonable and
has been specifically brought to the
attention of the consumer.
As the I.T.A.A. Scheme itself
limits liability to £5,000 for any
claim and excludes personal
injuries, Carroll J held that it is a
provision restricting the liability of
the supplier for a breach of an
implied term under the statute, and
that as the provision restricting the
liability was not contained in the
general conditions of the contract,
and accepted the averment of the
Plaintiff that the purported restrict-
ion was not b r ought to his
attention, the Arbitrator could not
apply the scheme as drawn up and
went on to hold that the Scheme
was inoperative and incapable of
being performed and dismissed the
appeal by the Defendant/Appellant.
This judgment was accepted by
the Defendant shortly thereafter in
the similar case of Whitfield -v- Joe
Walsh Tours Limited, when they con-
sented to an Order being made on
similar terms as in McCarthy -v-
J.W.T.
Fortunately the Plaintiffs in both
actions did not accept the Irish
Travel Agents Association's re-
commendation not to seek legal
representation.
Yours faithfully,
Raymond St. J. O'Neill,
Raymond St. J. O'Neill & Company,
Courthouse Chambers,
27/29 Washington Street,
Cork.
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