Holiday season is up – how the new protocol is tackling the travel sickness epidemic

For the last few years the travel industry has been battling a litigation epidemic, now infamously referred to as “holiday sickness” claims. Historically, many companies had sought to reach early economic settlement of gastric illness claims, rather than face the potentially eye watering costs of defending litigation. This unintentionally encouraged unscrupulous claims management companies to aggressively market and recruit potential claimants. In turn, fraudulent or unmeritorious claims arose as touts encouraged them, knowing they were unlikely to be challenged. A loophole in the protocols for other personal injury claims, meaning injury suffered overseas would not be subject to fixed costs, offered extra encouragement to those seeking out the claims, now rectified by a new pre-action protocol for travel claims.

Background

In September 2016, the Solicitors Regulation Authority (SRA) reported, via ABTA, that such claims against tour operators had increased by 500 percent since 2013. During that period and since, the subject has seen revelations over claims of “touts” and illegal soliciting, fundamental dishonesty findings, and private prosecutions. Not to mention the SRA and General Medical Council (GMC) taking action against law firms and experts respectively. At one stage there was even the prospect of hotels considering refusing to take any bookings for all-inclusive holidays from British customers.

The Ministry of Justice took action, by introducing the Pre-action Protocol for Resolution of Package Travel Claims (the Protocol), which introduced fixed recoverable costs for holiday sickness claims.

The Protocol applies the public liability fixed costs regime to all claims intimated after 7 May 2018 arising from a gastric illness contracted during a package holiday, and where that claim is valued at under £25,000. It will not apply to claims under the Athens or Montreal Convention, notably excluding claims brought against cruise companies.

Exchange of evidence

The Protocol also provides important new provisions on exchange of evidence and clearly defines what is expected from defendants. This will hopefully end disproportionate requests for disclosure of documents by claimants, which are rarely in the possession of tour operators. Conversely, claimants will be expected to disclose key evidence such as relevant medical records, photographs, social media posts, bank statements, and receipts at the start of a claim.

Too often such information has been withheld until an advanced stage of litigation, by which time considerable costs have already been incurred. Again this will provide greater certainty about the nature of a claim at an early stage. It will also make it more likely that claimant solicitors will have more consideration for the merits of a claim.

Comment

Consumers will still have access to justice for genuine claims. It is however expected that the new rules regarding pre-action evidence exchange, and the limited cost benefits for those companies that actively encouraged the recent epidemic, will result in tour operators receiving fewer claims in future.

Proving causation even in cases where there is a genuine illness is far from easy, particularly where there is a lack of contemporaneous medical evidence to substantiate an allegation of food poisoning. The Protocol will go some way to assist, and the industry has already proven its willingness to defend rather than pay such cases.

The key benefit to the Protocol is the new rules regarding disclosure. Not only has it taken a sensible approach with what defendants are expected to provide, it ensures that claimants are truly put to proof on their claim by requiring them to provide all pertinent evidence. Interestingly, it outlines that the claimant should provide details of any other package travel claims they have made. This will certainly go some way in tackling the issue of repeat claimants, and the suspicion of those using litigation to pay for their next holiday.

Related item: A sudden outbreak of holiday sickness claim

Read other items in the Personal Injury Brief - July 2018