Tourism Law in Europe

but will not recover any compensation for that at all – only for the cost of replacement or repair of the computer, or a cash refund. Nevertheless, it was recognised, in the infancy of package holidays, that there needed to be an exception to this rule. In a historic break with tradition, Lord Denning, in the famous case of Jarvis v Swans Tours 1973 , said: “ In a proper case, damages for mental distress can be recovered in contract” . Lord Denning also defined what the main characteristic of a “proper case” is, by adding: “ One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment” . As we shall see, later judges have slightly refined this wording, but not the meaning – that a package holiday is not just a seat on a plane and a room in a hotel, but a contract to provide entertainment and enjoyment . Indeed, Lord Denning addressed this directly: “ Mr. Jarvis's fortnights winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and back and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself ”. As stated, the precise test to determine the nature of the contract has been refined over the years since Jarvis was decided, and now the preferred formula is: Where the contract which has been broken was itself a contract to provide peace of mind or freedom from distress . Therefore, a contract for a holiday is a contract to provide peace of mind or freedom from distress, having also included holidays that were essentially “accommodation only”, as was the case Keppel-Palmer v Exsus Travel 2003 . This contrasts with cases of “flight only”, which the courts have regarded as purely commercial contracts – and thus not intended to provide peace of mind – and have awarded diminution in value compensation only, i.e. the case Wiseman v Virgin Atlantic 2006 . This analysis suggests that those who argue that they need not allow cancellation of a holiday in the face of adverse Government advice, on the grounds that the flight and hotel are operational, are misunderstanding how the courts view holiday contracts, and what arguments, likely to be successful, would be deployed against them by a consumer claiming a full refund under Article 12(2) PTD. This is further illustrated by a different area of the case law, which we will address below.