Wish we weren't here

Beaten and battered by your holiday from hell? Here's how to get compensation. By Teresa Hunter

Dear all, having a lovely time. Smashing hotel, or it will be when it is finished. Beautiful beach, delightful trek. Disco handy, just next door. Wildlife...fascinating. Postmark Hell.

Hope triumphs over experience each year when the British set off on 16 million package holidays, only to return stressed-out and exploding with horror stories.

Disaster can strike out of the blue as it did this week when the container Ever Decent crashed into luxury liner Norwegian Dream. Then again, shoddy accommodation, poor sanitation and broken promises send us scurrying for compensation.

However, this season's short-changed travellers could become caught up in the ugly storm brewing between travel firms and holiday watchdogs over how compensation should be calculated.

For months, the Association of British Travel Agents (ABTA) has been drawing up guidelines to be published shortly, aimed at helping customers prepare claims.This week, however, in a dramatic counter-attack, trading standards chiefs dismissed the travel industry's offensive as "irrelevant" and warned holidaymakers they were unlikely to be a true reflection of their legal rights.

Holiday firms think some customers have unrealistic expectations about what they can claim in damages when something goes wrong. The new guidelines aim to curtail those expectations, thereby limiting the damages bill.

An ABTA spokesman explains: "Some people think they can have a full refund when just one element proves unsatisfactory. They can't."

He says flights typically account for 60 per cent of most package deals, so even if your accommodation is appalling, you are unlikely to receive as much as 40 per cent back. Similarly, the cost of providing a swimming pool would be a tiny fraction of the bill. The loss of that pool would be equally insignificant when calculating a payment.

But the Institute of Trading Standards, which polices the industry, strongly disagrees. Its chief officer Ed Chicken says: "It is wholly irrelevant to the holidaymaker how much the tour operator pays for flights. Compensation should be based on the impact on the customers' enjoyment of their whole package if something falls short. It may be miserable to be stuck in an airport for 12 hours because of a flight delay, but if that is followed by 12 or 13 days of blissful holiday, people quickly forget. It is much more miserable to be stuck for two weeks in a cockroach- infested villa."

There are no laws on the amount of compensation, although ABTA says its guidelines will follow normal court procedure. Its spokesman said: "The courts look at the various components of a holiday and make an award based on the value of that part of the package."

Not so, says Ed Chicken, adding: "The courts look at what you've received for what you have spent. If something goes wrong so that one day of your holiday is ruined, then you can reasonably claim the value of that day. But if something like poor accommodation ruins your entire holiday, then you are not only entitled to the full cost back, but additional compensation for the loss of your one opportunity of a good holiday until next year."

So how do you complain about your holiday from hell? Your contract is with the tour operator so first approach the company at the resort via the rep. If the promises in the brochure were misleading, or some aspect of the trip is ruined through negligence of maladministration, you have a legitimate claim. However, you also have a legal duty to mitigate damages by giving the firm a chance to put things right on the spot. If you are still dissatisfied on your return, you should write immediately to the travel company, which must reply within 28 days. If you still get no joy, then you must write again, before you can approach ABTA's arbitration service.

For a flat fee of pounds 65, ABTA will assess your claim, and 80 per cent of those who go to arbitration win. Worryingly, however, only 1,625 of the initial 18,400 complaints made last year went to arbitration. Alternatively you could consider legal action through the County Court small claims procedure, for disputes under pounds 3,000.

Do not be bullied by the company. The timetable for publishing these tough new guidelines has been slipping all summer, and if Trading Standards get their way, they may never see the light of day

An ABTA spokesman reluctantly admits it is a very delicate exercise, which would have to be sensitively worded.

"In fact, you could say we're only really at the planning stage," he adds.

For further information: Association of British Travel Agents,55-57 Newman Street, London. (0171 637 2444).

HOW TO MAKE THEM PAY

Last minute changes to hotel, itinerary or destination are breach of contract. Demand full refund or an alternative holiday.

Always complain first to the tour rep. If it is not sorted out quickly, ask for a company complaint form.

Take photos or videos of poor accommodation or building work.

If you incur extra expenses because of breach of contract , get receipts or bills as proof.

Keep a record of problems with dates and action taken.

Ask other travellers if they will back up your complaint.

Back home, write to the tour operator's head office and say what compensation you want.

Enclose copies of documentary evidence, photos, receipts, bills. Keep the originals in case you need them for any future action.

Be persistent! Don't allow yourself to be fobbed off with excuses. If you are not happy with the initial reply, you should complain to your local Trading Standards department.