horwich farrelly

Fixed Costs and the Pre-Action Protocol for Resolution of Package Travel Claims

April, 18, 2018

The Ministry of Justice (MoJ) has today published the Pre-Action Protocol for Resolution of Package Travel Claims. Whilst the introduction of fixed costs in holiday sickness claims may be the main headline, Horwich Farrelly believe that changes to the requirements for the Letter of Claim and disclosure will play an equally important part in curbing fraudulent claims.

The MoJ announced the introduction of fixed recoverable costs (“FRC”) in package holiday sickness claims on 13 April 2018 with the new rules coming into effect for letters of claim sent after 6 May 2018. The costs of these claims will be fixed at the same level as public liability claims that start in but exit the MoJ Portal process.

Currently costs in these claims are recoverable on a charge by the hour basis which has led to disproportionately high costs being claimed and the well reported substantial increase in the number of claims. The implementation of FRC in conjunction with other measures taken by the travel industry is expected to lead to a significant reduction in the number of fraudulent claims.

In response to the MoJ consultation, Horwich Farrelly, in conjunction with FOIL and the travel industry, called for a bespoke pre-action protocol to address the adverse behaviours that were being seen on travel claims. We are pleased that the MoJ has adopted this proposal which introduces some key changes:-

The Package Travel Claims PAP applies where:

  • The claim arises from gastric illness contracted during a package holiday.
  • The letter of claim has been sent to the defendant after 6 May 2018.
  • Personal Injury is claimed.
  • The claimant values the claim at not more than £25,000.

It should be noted that the scope of the PAP is not limited to claims that arise outside of England and Wales.

Letter of Claim

Within the letter of claim the claimant must include a clear summary of the facts and details of:

  • Location and date of the alleged breach.
  • Nature of the illness suffered and how it impacted on claimant’s day-to-day functioning.
  • Date of onset.
  • Whether treatment was sought and, if it was, when and from whom it was sought.
  • All attendances at GP / hospital.
  • A schedule of any financial loss.
  • Indication of any further heads of damage to be claimed.
  • Details of any other travel claims made.

Disclosure

If the defendant denies liability / causation, then the claimant has to provide disclosure of:

  • Receipts / proof of medication.
  • Details of any excursions they have been on.
  • Relevant entries in bank / credit card statements relating to the period of the stay.
  • Relevant medical records.
  • Relevant photographs / images taken during stay (and metadata if available).
  • Social media posts relating to the claimant.

Expert Medical Evidence

There provisions remain similar to the PAP for personal injury claims but with one significant difference – if the period of illness was not longer than 28 days, it is expected that the medical report will be from a GP.

Commentary

The surge in travel claims resulted in many “new players” entering this arena. This brought with it significant inconsistencies in the ways that claims were presented and case managed. The lack of a bespoke template for a letter of claim meant that these often lacked basic information required to consider the claim and where information was provided it was often inaccurate. The template letter of claim provided in the new PAP provides defendants with a basis on which to require claimants to address any omissions.

Disclosure has proven to be particularly problematical. Claimants would frequently submit a standard request for countless classes of documents many of which would not be relevant to the particular claim and would in any event be disproportionate to the value of the claim. At the same time as making onerous requests of defendants, many claimants would fail to respond to disclosure requests by defendants.

The PAP now clearly defines what documents should be provided by each party. This is the first PAP that provides for disclosure of medical records, bank statements and social media data. The latter may raise an eyebrow but it must be considered that more and more claimants will activate the privacy settings on their accounts, not least because of the widespread news coverage of facebook users data being misused.

The requirement for this disclosure means that whilst personal data is private, if it contains relevant evidence then, just like private medical records, it is open to defendants to request, and if need be apply for, those documents.

The introduction of FRC will in any event lead to a change in behaviour in terms of pre-action disclosure (“PAD”) by claimant representatives. Firstly, the costs of a PAD application will be fixed at £250. Secondly there will be no incentive to spend time obtaining and viewing irrelevant documents. Under FRC it will not be cost effective to continue with the “scattergun” approach of requesting every conceivable document.

The obligations to supply all the relevant information and documents at an early stage will, in our view, inevitably lead to earlier identification of unmeritorious claims by claimants own representatives. Taken in conjunction with the implementation of FRC, we expect these measures will lead to a significant drop in fraudulent travel claims.

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