1. Does Henry have a claim for breach of contract against Channel Coaches?

I: This depends on whether Henry has standing to sue on the contract.

L: Dunlop Pneumatic Tyre v Selfridge: under the common law, a third party to a
contract cannot enforce it.
Woodar Investment Development v Wimpey Construction Richard can only sue
for his own losses and cannot recover Henrys losses (note exceptions e.g.
Panatown do not apply (builder and owner); Beswick v Beswick specific
performance clearly unavailable on the facts)
Section 1 Contracts (Rights of Third Parties Act): overrules the common law rule
in part; if A and B enter into a contract which confers a benefit on T and there is
nothing in the contract to suggest that they do not intend for T to be able to
enforce it, then T can rely on the term which purports to confer a benefit on her
Nisshin Shipping v Cleaves & Co: two-stage test: 1) Does the term confer a benefit
on T? 2) Is there anything to suggest that the common intention of A and B was
for T to be unable to avail himself of said clause?
Section 1(3): T must be expressly identified in the contract by name, as a
member of a class or as answering a particular description
Section 1(2): By implication, if there is a clause which ousts the operation of the
Act, it will be effective to demonstrate that the parties did not intend that T
should enforce the term.

A: Under the rules of the common law, Henry would have no standing to sue as
he is not a party to the original contract and Richard could sue but would be
unable to recover Henrys loss. If the Contracts (Rights of Third Parties) Act
applies, then Henry will be able to sue as he is named in the contract and the
contract is clearly intended to benefit him. However, the clause in the conditions
of carriage (if validly incorporated, see below), will mean that the second limb of
the Nisshin test is not satisfied, that is, the parties did not intend for T to be able
to sue, and, consequently, the position will revert to that at common law (Henry
will have no claim in contract).

2. Is the clause excluding the Contracts (Rights of Third Parties) Act validly
incorporated?

I: Was the inclusion of the clause on the website sufficient to incorporate it as a
term of the contract?

L: Parker v South Eastern Railway it is possible for a term to be incorporated by
reference and the fact that the party did not read the term or the document
which referred to it is irrelevant, all that matters is whether he was given
reasonable notice
Interfoto Picture Library v Stiletto Visual Programmes Ltd the more onerous the
clause, the greater the requirement to draw it to the other partys notice
Thornton v Shoe Lane Parking if notice was given after the moment at which the
contract was concluded, this notice is ineffective

A: The text of the question does not explicitly resolve this. Presumably, if the
terms were easily accessible on the website from which the tickets were
purchased and clear reference was made to them during the booking process,
they will be validly incorporated. If no mention was made then they will clearly
not be terms of the contract. How onerous the term is open to question: it
certainly does not reach the Interfoto level where the term in question was a
concealed penalty clause.

NB: UCTA does not apply (it is limited to limitation, exclusion and indemnity)
and even the existing UCTR case law means that if the term was open and fair
and did not cause a significant imbalance in the relationship between promisor
and promisee (the promisor being Richard), it will be binding.

A: It is unclear from the question. If the term is incorporated into the contract,
then Henrys claim lies solely in tort, if the term is not incorporated, then he can
claim for breach of contract.

3. Did Channel Coaches breach?

A: Assuming that the contract was for a particular coach at a particular time and
contained no provisio for service cancellation, then Channel Coach is in breach
because contractual liability is strict.

4. What can Henry recover for?
L:
Remoteness:
Hadley v Baxendale the claimant can recover all losses directly attributable to
the breach: arising naturally or such as may be reasonably anticipated to have
been in the contemplation of the parties at the time when the contract was made;
he can only recover additional losses if the risk was brought to the attention of
the defendant at the time when the contract was made
Victoria Laundry v Newman Industries the defendant cannot be assumed to
know of any special (2
nd
limb) risks
The Heron II the test for determining whether the loss was remote is to ask
whether it was not unlikely to arise (per Lord Reid)
The Achilleas The Heron II seemingly confirmed; suggests that market practice
can sometimes rebut the presumption that a likely loss is not remote(per Lord
Hoffman cf Lord Rodger and Baroness Hale, Lord Walker agreed with everyone)

Mitigation:
British Westinghouse Electric v Underground Electric Railways the promisee is
under a duty to mitigate his loss
Banco de Portugal v Waterlow & Sons the defendant must not unreasonably
increase the loss suffered as a result of the breach (negative obligation)
Pilkington v Wood the claimant must take reasonable steps to minimize his loss
(positive obligation)

A: There are three heads of damages that Henry could potentially claim for: the
transportation expenses, the accommodation expenses and the damage to the
laptop (which will be considered with the negligence claim).

The hotel accommodation was clearly a foreseeable loss: an ordinary coach
operator can reasonably foresee that if passengers are stranded in a city which is
different from their intended destination with no onwards connections, they
would have to find accommodation.

The transport expenses pose a different question. While the fact that the
passengers would incur expenses to reach Peterborough, their stated final
destination, is foreseeable, the fact that they had missed a connection to York
cannot have been in the contemplation of the coach company at the time the
contract was made. Whether it was not unlikely that they would continue to
York is a difficult question of fact, but it can plausibly be argued that an onward
connection with a different company is less likely than the immediate sale of the
sugar in Basra by a commodities trader in The Heron II. If The Achilleas is taken
to mean that trade usage is relevant, then the fact that most transport
companies, such as airlines, do not consider themselves liable for such losses
(and usually limit their liability accordingly) could be relevant. On the balance of
probabilities, it appears more likely that the cost of travelling from Peterborough
to York would be too remote.

Even if this does not hold, Henry is under a duty to mitigate his loss. The
purchase of train tickets instead of coach ones can be seen as an aggravation of
the loss. Although the court in Pilkington held that the requirement on the
claimant is not unduly onerous, it is a well-known fact that train tickets
purchased at short notice are considerably more expensive than coach tickets. It
is therefore likely that recovery will be limited to the cost of coach travel to
Peterborough or (if it is accepted that the cost of travelling to York was not too
remote) York.

5. Can Channel Coaches rely on the exemption clause?

I: In order to avail himself of an exemption clause, a promisor must show (1) that
the clause was incorporated into the contract (2) that the wording of the clause
is wide enough to cover the loss in question (3) that the clause does not fall foul
of the Unfair Contract Terms Act or Regulations.

L: (1) Incorporation:
See above, Interfoto, Thornton, Parker: onerous clauses should be drawn to the
attention of the promisee; more attention should be drawn to more onerous
clauses

(2) Interpretation:
Tan Wing Chen v BCC Hong Kong exemption clauses are interpreted contra
proferentem
Wallis, Son and Wells v Pratt and Haynes contra proferentem is the usual
approach but it will be applied with greater strictness to exemption clauses
Investment Compensation Scheme v West Bromwich Building Society the old
intellectual baggage of legal interpretation has been discarded
BCCI v Ali (Lord Hoffman, dissenting) the advent of UCTA means there is no
longer any need to apply the contra proferentem rule; seemingly supported by
Finley Lock Seeds (per Lord Denning)
Photo Production Ltd v Securicor there is no longer a doctrine of fundamental
breach

(3) UCTA
Section 3(1): applies to contract where one party deals as a consumer or on the
other partys standard terms of business (s.12 dealing as a consumer defined)
George Mitchell (Chesterhall) v Finney Lock Seeds reasonableness is a question
for the trial judge
Schedule 2 lists factors
Watford Electronics v Sandford CFL equality of bargaining power
Stewart Gill v Horatio Myer regard must be had to the clause as a whole not the
part in dispute and the court cannot sever a clause to save the reasonable parts
The Flamar Pride insurability of a risk is a relevant factor
Finney Lock Seeds if the clause is in practice often not relied on this will be a
factor against reasonableness

(4) UCTR 1995 s. 5: term which is not individually negotiated is unfair if it is
contrary to good faith and causes a significant imbalance to the detriment of the
consumer
s. 8: such term not binding on consumer
Schedule 2(b) (indicative only): inappropriately excluding or limiting legal
rights
OFT v First National Bank good faith = open and fair dealing and significant
imbalance= so weighed in favour of the supplier to tilt the parties rights and
obligations under the contract significantly in favour of the supplier
OFT v Abbey & ors the exemption which prevents courts from assessing the
fairness of the price is to be narrowly construed
But note: unfair (good faith + substantial imbalance) is a Community notion yet
to be defined by the ECJ

A:
(1) Incorporation: the considerations set out with regards the Contracts
(RoTP) Act apply. The exclusion clauses can only be relevant on the
assumption that the general conditions are incorporated but the
Contracts (RoTP) clause is not. This will be true if the contracts clause is
deemed too onerous to have been incorporated without special attention
being drawn to it.
(2) Interpretation: Even if one assumes that the contra proferentem rule no
longer applies, it is difficult to see how the clause which purports to
exclude liability for adverse weather applies. It is clearly made
conditional on other forms of transport being affected and the facts state
that the prospective claimants were able to board a train to York the next
day, thus possibly suggesting that train services were operating as
normal. While the information give is inconclusive, it is reasonable to
suppose that the snow did not affect other forms of transport. An
application of the contra proferentem rule would suggest an even stricter
interpretative approach, perhaps extending to every other conceivable
form of transportation (e.g. marine transport which cannot in general be
affected by snow) and only considering them to have been affected if they
were not operating at all (as opposed to, say, running a late or reduced
service).
(3) UCTA: It is clear that the claimants are both consumers and acting on the
other partys written terms. The question is whether the clause was
reasonable. The parties bargaining power is clearly asymmetrical. Both
parties risks are insurable: travel insurance is available to protect against
delays and liability insurance for weather-associated risks is presumably
available to transport companies. It is unclear from the facts whether
Channel Coaches has a practice of compensating in such cases or whether
there is such a practice within the industry as a whole, but if there is this
could suggest unreasonableness. In any event, the court will assess the
entirety of the risks set out by the clause.
(4) UCTR: if the terms were incorporated, this is presumably because there
was a reference to them and they were located on the website from which
the tickets were purchased. It is clear from Abbey that the coach company
cannot raise an argument to the effect that the exemption clauses form
part of its pricing policy and are thus exempt. Whether the clause was
sufficiently open and fair is unknown and would depend on the nature
of the reference to the Conditions. As of imbalance, while it is clear that
the customers would be better off if the clause was not in the contract,
this is not enough according to First National. Accordingly, while there is
much uncertainty in the law, it is more likely than not that the clause will
not be contrary to UCTR.

C: It seems likely that, if the clause is incorporated into the contract, its wording
does not catch the factual scenario presented. If it does, then it is unlikely to be
found to be unreasonable in the sense envisaged in UCTA/R.

Conclusion: If C(RTP)A does not prevent Henry from relying on the term, the
most likely outcome is that he will be able to recover the cost of travelling from
Stevenage to Peterborough by train.