PI Brief Update

Faking it: Holiday Sickness Claims, An Update on the New Rules - Katherine Ettridge, Blake Morgan

23/08/18. As many of you may have heard in the news, tour operators have warned that British tourists could be banned from all-inclusive package holidays in some countries, or the price of going on all-inclusive holidays could rise, as there has been a huge spike in reports of holiday sickness, mostly from British tourists.

Rogue firms have been using touts at the holiday destinations to encourage tourists to make illness allegations so that the firm can receive part of the compensation. Some of these claims management firms are leading tourists into believing they can make a fraudulent or exaggerated claim without any consequence.

The Foreign Office updated its travel advice with new guidelines, warning tourists that they may face legal proceedings if they are caught faking illness and trying to get compensation. The Ministry of Justice has said that UK holidaymakers who are found guilty of making a fraudulent claim face up to three years in jail.

The SRA has also updated a warning notice in August 2018 confirming that they are investigating some claims firms involved in holiday claims. Such types of holiday sickness claims have demonstrated that some law firms fail to properly assess all the evidence before submitting claims. The SRA have stated that there "seems to be a serious risk that many holiday sickness claims are not genuine. Examples of risk factors in holiday sickness claims would include:

· The claim is made some time after the alleged incident

· There was no report of the claim to the hotel

· There was no extensive sickness amongst others in the same accommodation

· The claim comes from or involves people that have actively sought out/farmed for claims in a resort

· The client’s contemporaneous report of the holiday was positive

· The client drank or ate excessively before or after becoming ill"

The Association of British Travel Agents (ABTA) has reported a 500% increase from around 5,000 claims in 2013 to around 35,000 claims in 2016, although I note there is no evidence to show how many of these claims have been spurious.

The new rules were bought in, in April, before the start of the Summer Holidays. http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-resolution-of-package-travel-claims

The idea is that the new rules, campaigned for by ABTA, to fix legal costs which can be claimed by claimant lawyers in package holiday sickness claims, mean that Tour Operators can defend potentially fraudulent claims without fear that their costs will be hugely disproportionate. Many operators were settling holiday sickness claims out of court, rather than challenging them because defence costs were so unpredictable and often spiralled out of control.

The new rules for holiday sickness claims are feared by claimant solicitors to be just another step towards fixed costs in all foreign claims, and this raises the long running argument of access to justice being restricted and the mission creep which has started with the initial fixing of costs in gastric illness claims. Claimant lawyers had urged the government not to impose fixed fees across all claim types, since extra costs are incurred abroad through instructing local experts, translation services and serving local standard evidence.

One of the more relevant cases in this regard was Caldwell v Thomas Cook Tour Operations Ltd.

Caldwell v Thomas Cook Tour Operations Ltd

The Claimant made a claim for illness against the tour operator, following a package holiday in Menorca. The Claimant stated that he and his son had become ill as a result of eating contaminated food. A questionnaire was filled in on the flight home which confirmed that no member of his group were ill during the holiday, however the Claimant said that it was his 10 year old son who had filled it in.

DDJ Colvin found against the claimant and stated that it was inconceivable that, if the Claimant and his son had been confined to a hotel room for a period of eight days, that not a single report of that incident would have been made to the hotel, as it was an incident that was of such disruption to a family with young children.

There is also "significant inconsistency between the pleaded case, the letter of claim, the medical report and the statement of evidence. There was no mention of a specific incident of the claimant eating some pink chicken in the letter of claim or statement of case, despite the claimant relying on that in his witness statement." Further, "the explanation that it was the claimant’s son who filled in the satisfaction questionnaire was quite astonishing and was rejected. It was clear, having looked at the questions, that they had been answered by an adult. In that form he confirmed categorically that he was not ill."

DDJ Colvin addressed the Claimant's credibility and he did not find it necessary to deal with the further issues including the relationship of any gastric illness to the food and drink served, because he was not satisfied that there was such an illness. He found the claim to be fundamentally dishonest, as the Claimant could not have been mistaken about alleging illness.

Since October 2017, four other couples were either sentenced or ordered to pay significant legal costs by the court after making false package holiday sickness claims.

Steps for Tourists to take

The consequences of finding fundamental dishonesty are widely known and will not be discussed in this article. In terms of specific steps to take, although the fixed costs measures have been brought in to crack down on those who engage in dishonest practice, unfortunately it makes it harder for those with genuine claims whose holidays have been ruined, to receive the compensation they deserve.

If tourists have been on an all-inclusive holiday, not eaten off site and suffered a gastric illness then they need to make sure they get a report from the hotel or tour representative and medical evidence at the time of illness. Also, to get details of any other guests who have suffered the same or similar sickness. It is important to seek advice from their travel insurer as soon as possible. Evidence will be key in bringing such claims, now.

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