It looked better in the brochure . . .

It's that time of year again when stories of package holidays from hell are doing the rounds. The flea-infested apartment, the sea view that would barely be discernible with a high-powered telescope, inadequate facilities, unhelpful receptionists, the list goes on. But how likely is the Irish holiday-maker to pursue the bitter holiday complaint all the way to the courts or arbitration? Not very, according to the statistics, although 1997 showed a slight increase on previous years.

The number of holiday complaints has soared over the past five years, in part reflecting the increasing popularity of the package holiday. One agency alone, the Consumer Advice Shop on O'Connell Street, Dublin received 754 complaints last year, three times as many as in 1993. However, only 164 of all complaints received by the various consumer rights agencies last year were referred to arbitration and only 124 cases went all the way to the Small Claims Court.

"A lot of people don't follow through with their complaints because they fear the legal system or because it's too much trouble," says Anne Hynes, information officer at the Consumer Advice Shop. "Often I ask people to put their complaints in writing and I don't hear from them again. I would urge people to take action through the District Courts or arbitration. The legislation currently in place is only as good as the people who enforce their rights."

Current legislation has made it easier for consumers to establish their holiday rights. Before the Package Holiday and Travel Trade Act was passed in 1995 a claim would probably have had to be pursued against the hotel owner through the courts of the foreign country. Now the consumer can fight his or her case against the tour operator or the travel agent at arbitration or, if the claim is under £600, through the Small Claims Court. Under the Act, the tour operator may also be liable for personal injury if in breach of contract in some way.

It is not known how many arbitration cases are settled in favour of the consumer, however. The process is confidential and no figures have been released by the Chartered Institute of Arbitrators. Although designed to be cost effective and informal, one of the pitfalls of the procedure can be the "sealed offer" where the tour operator makes an offer to the consumer. If the offer is rejected the operator then passes the details of the offer to the arbitrator in a sealed envelope. If the amount in the envelope is greater than the amount the arbitrator has awarded, the consumer can end up paying all the costs.

It is likely that the number of people who go ahead with arbitration and small claims will increase as consumers become increasingly aware of the law and their rights. Jonathan Buttimore, author of Holiday Law in Ireland, due to be published by Blackhall in October, says that there has already been a rise in the number of arbitrations over the last two years.

"Practitioners of the law are more aware of the Act and of the legal remedies available. They are in a better position to advise the consumer," he says.

The success of a case can hinge on the production of proof, according to solicitor John Schutte, who had his own holiday disaster in the Canary Islands 10 years ago.

"My advice is to take photographs and bring back samples where possible. The onus is on the consumer to prove his or her complaint," he says.

It is also important that people have realistic expectations of their holiday, says Anne Dolan, legal adviser to the ITAA.

"It goes without saying that consumers should get what they paid for but sometimes a bit of realism is called for. If a very low price is paid for a holiday, then it goes without saying that it is not going to be of the same quality as a more expensive holiday. When things do go wrong there is a duty on the consumer to try and minimise the loss, make the best of things and not let an incident ruin the whole holiday."

In her experience the hearings are generally pro-consumer, although very few go to full hearing.

"One major tour operator has a complaint file of 2,000, 35 of them went through the initial stages of the procedure but only five went to full hearing. Most are settled out of court."

Caroline Gill, chief executive of the Consumer Association, stresses the importance of lodging complaints with the holiday representative while still on holiday.

"Get a copy of the complaint form signed by you and the rep. A lot of holiday companies won't entertain a complaint unless a record of it was lodged at the time with their representative," she says.

The best way to avoid disaster is to find out as much as possible about the resort and accommodation before setting off.

"Consumers should try and make sure they ask all the relevant questions before booking a holiday," says Gill. "They could perhaps ask family and friends to recommend a resort. If the brochure is vague about the cleaning services, it is a good idea to ask exactly how often the apartment is cleaned. One should also make sure the travel agent is ITAA bonded and keep receipts of all monies paid. And read the booking form, in particular the terms and conditions, before signing. Be aware that when signing the booking form one is agreeing to be bound by the arbitration clause should there be any problems with the holiday."