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Alex Jones - 'Turbulent Take Off' - Drama in holiday illness claims

06/10/17

AJ

The number of holiday sickness claims being brought against tour operators and holiday companies has soared more than 500% since 2013. The increased prevalence of such cases, which are not yet subject to strict costs provisions, has attracted both media and political attention in recent times. In July 2017, Justice secretary David Lidington announced that the Government planned to change costs rules to clamp down on the growing market in holiday sickness claims, it being envisaged that such claims would fall under similar fixed costs provisions to that of road traffic accidents, and accidents occurring within the workplace [1].

The waning political attitude has no doubt impacted upon the legal landscape, which has in recent times shifted to protect the travel industry from holiday sickness claims. In particular the highly reported case of Wood v TUI Travel Plc [2], often cited by defendants, is considered to be one of the many reasons that law firms now think twice before venturing into the uncertain world of 'holiday sickness'. One regional law firm in the wake of theWood decision dropped 3,500 pending actions against TUI (UK) Ltd, noting that the decision represented a 'seismic change' in holiday illness claims [3]. It is safe to conclude that both political strategists and travel industry operators seek to close what they consider to be an 'exploited' loophole and make the costs associated with these claims predictable, in effect reducing the incentive to bring exaggerated claims.

Added to the changing legal landscape is the increasing incidence of widely reported fraudulent claims, which cast a spotlight on claims for holiday illness in general and offer dim reading for bona fideclaimants. The case of Lavelle v Thomas Cook Tour Operators [4] was one of the first major victories for the travel industry. In the case, heard in Liverpool County Court, Deputy District Judge Herzog dismissed the claims and found both Claimants to have been fundamentally dishonest in the pursuit of the same. DDJ Herzog ordered the Claimants to pay £3,744 to the Defendant. It is clear from the travel industries response to the case ofLavelle that a hard line is taken in all appropriate cases, having the consequential effect of adding further risk and reducing prospects of settlement for claims in general.

The pursuit of compensation after suffering sickness whilst on a holiday under the Package Regulations 1992 is, by virtue of the associated media and political attention, approached by most defendants with distain and suspicion.

As is required in almost all civil cases, the first step to be taken by any claimant is to send a letter before claim to the defendant in compliance with the relevant Pre-Action Protocol. In all cases the letter before claim should contain 'sufficient information'for the defendant to assess liability and to enable them to estimate the likely size and heads of the claim without necessarily addressing quantum in detail. A defendant is then given adequate time to acknowledge the letter (21 days) and to investigate the claim before providing a formal response setting out their position as to liability (3 months).

In light of the industries suspicion, as addressed above, it is becoming increasingly common for defendants to frustrate their own investigation process and the progression of claims until the claimant completes a 'sickness questionnaire', which is endorsed with a signed statement of truth. An example of the rationale behind such a view is taken from a recent response letter:

"Please find attached Sickness Questionnaire for completion by your client. We are unable to progress your clients claim without this completed in full, with a signed Statement of Truth. If those questions remain unanswered and proceedings are issues, we have no option but to immediately apply for an order that your client responds to these questions and for an extension for the Defence until your client does respond to the questions in full as well as for costs. We cannot fully prepare our Defence/assess your client's claim without their full response. We believe that the request is reasonable and proportionate and consider each and every question is relevant".

Claimants often refuse to comply with any request for further information at such an early stage in proceedings, simply referring defendants to the information contained within the letter before claim, which ought to contain a clear summary of the facts on which the claim is based and sufficient information to enable a defendant to assess their liability. Claimants' representatives also refer to medical reports, which frequently contain more detailed information as to the factual allegations. The expression 'fishing expedition' is often used by claimants to justify their refusal in compliance with what they consider to be premature requests.   

The question to be considered is whether a defendant has good ground, supported by the relevant protocol or rules, to make such a request for what is essentially 'additional information'. Whilst there appears to be no reported case on the specific issues at present it is undoubtedly going to be the focus of judicial attention in the not too distant future, given the frequency in which the issue arises.

The question of whether or not a defendant's ability to investigate is thwarted, and thus whether their request for 'additional information' by virtue of completed questionnaires has good grounding, is fact specific and will depend heavily on what information has already been provided. The support of a full and detailed letter of claim is of paramount importance to claimants on the receiving end of such requests. Given the volume of claims being issued, it is common practice, and is in fact recommended by the pre-action protocol, that a standard format be used for letters of claim. Practitioners should however be wary that generalised and non-specific allegations will only seek to strengthen a defendant's justification for seeking additional information before proceedings are issued. The pre-action protocol does indeed appreciate that the level of detail will need to be varied to suit the particular circumstances of a claim.

The vast majority of defendants appear to be placing the cart before the horse in requesting additional information at such an early stage, and in effect seek to circumvent the process envisaged by witness statement exchange. Further, the Defendant's tactic of seeking voluntary information, by virtue of their own 'holiday sickness questionnaire', has the same effect as that envisaged by responding to Part 18 (Further Information) requests, without being subject to the relevant restrictions contained within those provisions of the Civil Procedure Rules. Whilst a defendant's intention is no doubt well placed, there appears, at the present time at least, to be no express rule or provision allowing defendants to seek further information or clarification, which goes above and beyond such 'sufficient information', as is required by the protocol to enable them to investigate the claim.

The aim of the protocol, and the spirit of the overriding objective in general, is for parties to cooperate in better and earlier exchanges of full information about the dispute, allowing for better investigation by both sides and enabling parties to be in a position where they may be able to settle cases fairly and early without litigation. Whilst defendants pray in aid of these protocol aims and the principles of reasonableness and proportionality, it remains to be seen whether their standard approach to requests for further information, even in light of detailed letters before claim, will attract sympathy and endorsement by the courts.

Until such time as the issue falls to be determined by the judiciary it is likely that claimant and defendant representatives will continue to lock horns over the issue of early requests for further information and the common place insistence on 'illness questionnaires' to be completed.   

Alexander Jones

[1] https://www.gov.uk/government/news/crackdown-on-fake-holiday-sickness-claims

[2] [2017] EWCA Civ 11

[3] http://www.travelweekly.co.uk/articles/283779/special-report-tui-holiday-sickness-case-prompted-law-firm-to-drop-3500-claims

[4] Liverpool County Court (2017) WL 04317351