While the holiday from hell has become a staple fixture of the TV schedules, most of us manage to enjoy our breaks in the sun. But it's also true that for many the reality doesn't match the over-hyped blurb of the glossy brochure. So what - if anything - can you do if you are safely back at home but your holiday dream is still giving you nightmares?
There are two main routes for seeking redress. The Association of British Travel Agents (Abta) has its own arbitration scheme, which is independently run by the Chartered Institute of Arbitrators.
Over the last 12 months it has dealt with close to 1,700 complaints - approximately 10 per cent of the number of complaints that the group received from disappointed holiday-makers.
In most cases the alternative is to go to the small claims court, where you can claim compensation of up to £5,000 as well as make small personal injury claims of £1,000 or less.
The Abta scheme has received flak from consumer groups. 'I would go for the small claims courts every time,' recommends Anne Harvey, of Holiday Which?
According to the group's research, judges made higher awards in eight of 11 cases that they looked at.
So what are the advantages of the small claims court? 'Most people aren't very good at what amounts to drafting a legal document, which is what is required on the form to launch an arbitration,' Harvey says.
'It seems to require a fair degree of understanding of how the law of contract works and most people are better at explaining what was wrong with their holiday face-to-face rather than writing it down.' The Abta scheme is papers-only and there is no hearing.
Stephen Maso, a lawyer who specialises in defending tour operators and travel companies, agrees: 'My advice would be if you are shy of presenting your case orally to a judge, then you'd be better off using the Abta scheme because if you are going to be tongue-tied then there's no point.
'For anyone else I would say the courts offer the best remedy. A coherent and passionate person who can put over exactly how they feel is the toughest sort of claimant from my point of view.'
Keith Richards, Abta's head of consumer affairs, argues that the Which? research was too focused on comparing compensation levels and did not look at the wider benefits of its arbitration scheme. 'The claim for a poor quality holiday is about £1,600 - it's the same for court or arbitration.'
He adds that small claims courts cost £200 in court fees whereas the Abta scheme costs £72.85. If you lose (or refuse a reasonable attempt to settle) you won't recover that fee.
'What we always do is present the two options to the consumer,' he says. 'If you go to court then you will have to travel to present your case. You can use a lawyer but it's going to be paid for out of your own purse and so it's not usually worth it. Whereas [with the Abta scheme] you simply fill in a claim form and send in the fee.'
Abta is an industry body that 'looks after the interests if its members', says Clive Garner, a partner at the law firm Irwin Mitchell, which specialises in representing holiday-makers. Garner points out that the Abta scheme is legally binding. This means that you are precluded from going to court if you choose that route and the ruling does not go in your favour.
He advises that holidaymakers who suffer an injury should contact specialist lawyers and not consider Abta or the small claims court.
Garner is acting for a number of families who fell ill while on holiday in Bermuda - 'the same hotel with similar illnesses and some quality complaints'. Among them is one woman who contracted a serious case of gastroenteritis. She could be prevented from going to court because she has already claimed unsuccessfully under Abta. Abta deemed that because a major part of her claim was to do with illness it fell outside its remit.
Vacation protection
1 Book your travel arrangements only with agents that are Abta members. If your travel includes flight arrangements, ensure that they are Air Travel Organisers Licence (Atol) protected.
2 Take out adequate travel insurance.
3 Don't take the brochures at face value. Find out about current building work, outbreaks of illness or any previous complaints.
4 Don't miss 'welcome' meetings and listen to what the holiday reps say.
5 If you are ill, seek a doctor. Make sure you are tested for the presence of infection.
6 Tell your holiday rep of complaints immediately. Make a record on a written customer complaint form and keep a copy.
7 Speak to other unhappy holidaymakers and exchange information and contact details. Make photographic/video records of the matters you are complaining about.
8 Do not sign any document which waives your right to pursue the complaint further. Do not accept on-the-spot compensation payments without legal advice.
9 When you come back, make a detailed complaint in writing to the tour operator within 28 days.
10 It's not enough that that you didn't enjoy your holiday or it rained. You have a legal duty to prove an operator broke the terms of a holiday contract, express or implied. An express term could be a promise in the brochure of full-board or water-skiing. An implied term is not spelt out but, for example, your holiday should be of a reasonable standard bearing in mind what you pay.
· Prepared with the help of Irwin Mitchell solicitors. For further advice on the consumer rights for holidaymakers, see holidaytravelwatch.net (helpline 0121 747 8100) and www.abta.com
