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Gastric Illness and the new Draft Pre-Action Protocol

In this article Miles Hepworth highlights the issues surrounding holiday sickness claims and the action being taken to address them, focusing on the new draft Pre-Action Protocol for the Resolution of Gastric Illness Disputes.

The scale of the problem

Recent case law reflects a favourable tide for the travel industry and the steps taken by tour operators and travel companies to tackle fraudulent gastric illness claims, which currently make up 90% of all such claims. A dramatic increase from about only 30% in 2013.

  • Just last week Chelsea Devine and Jamie Melling were found ‘fundamentally dishonest’ and ordered to pay holiday operator Tui £15,000, after falsely claiming that food and drink at their resort in Spain had left them feeling ill for weeks. The doctor who had supported their allegations has been referred to the General Medical Council after it emerged he is married to a partner at the legal firm representing them.
  • Leon Roberts and Jade Muzoka, who had presented gastric illness claims were recently given suspended jail sentences after their posts on social media exposed just how illness free their trip had been.
  • In a separate trial in October last year holiday makers Deborah Briton and Paul Roberts were jailed for 15 months after being found guilty of making fraudulent sickness claims.

These judgments highlight the extent of the 'cottage industry' that has grown up around such claims, including solicitors, claims management companies (CMCs) and medical experts.

Whilst the Claims Management Regulator has taken steps to tackle CMCs who are encouraging these spurious claims and although the Solicitors Regulation Authority has recently warned solicitors about the hazards, further punitive action was needed against the professional enablers who are supporting dishonest claimants.

Over recent months then the government has consulted with various stakeholders looking at the rules that govern these claims. The travel industry would like to see disclosure of social media posts and medical records forming part of disclosure required by claimants when bringing such claims. Social media postings played a major role in all of the above cases.

The majority of gastric illness claims are settled well before the issue of legal proceedings and it is equally important that at the early stages of such matters, adequate investigative steps are taken to validate or challenge the claims, and to stem the flow.

DWF along with other stakeholders has responded to the MoJ's call for evidence and has been working closely with the CPRC (Civil Procedure Rules Committee) in its request for further information culminating in a proposed new Pre-Action Protocol for gastric illness claims.

Rather than basing the revised Pre-Action Protocol on the Low Value Road Traffic Accident Protocol, it has been drafted with reference to the generic Personal Injury Pre-Action Protocol. A significant consideration being that the Low Value Pre-Action Protocol is geared to claims proceeding through the portal and in understanding that a portal process would not well support either the presentation or management of gastric illness claims.

It is anticipated that the new Pre-Action Protocol will come into effect as early as May 2018.

Draft Pre-Action Protocol – key features

We took a brief look at some of the key features of the draft Pre-Action Protocol.

Fixed Recoverable Costs

It is understood that the Public Liability Fixed Recoverable Costs Regime will be extended to cover package holiday gastric illness claims. A rule change to CPR Part 45 will bring into effect the process to be set out in the Pre-Action Protocol.

Admission of liability under the Pre-Action Protocol means the defendant admits that:

(a)        The claimant contracted a gastrointestinal illness arising from a breach of contract or breach of statutory duty or common law in respect of services, food and beverages provided under the "Package Travel Regulations".

(b)        The defendant thereby caused some loss to the claimant, the nature and extent of which is not admitted; and

(c)        The defendant has no accrued defence to the claim under the Limitation Act 1980.

Gastric illness 'means':

(a)        A gastro intestinal illness arising from a breach of contract or breach of statutory duty or common law duty in respect of services, food and beverages provided under a package which is regulated by the Package Travel Regulations; and

(b)        Includes gastroenteritis or other illness caused by:  

  1. Campylobacter;
  2. Cryptosporidium;
  3. E-coli 0157;
  4. Gairdia;
  5. Listeria;
  6. Nora virus;
  7. Rota virus;
  8. Selmonella; and
  9. Shigellasonnei

Value of claim

The protocol covers claims valued at no more than £25,000.

Aims of the Protocol  

  • Encourage better and earlier pre-action investigation
  • Ensure early and full exchange of information concerning the dispute
  • Encourage and enable the parties to resolve the dispute without the need for proceedings
  • Support the just proportionate and efficient management of proceedings where litigation cannot be avoided
  • Ensure damages are paid within a reasonable time period
  • Provide for fixed costs

Scope

  • Claims arising from gastric illness contracted on or after 31 July 2013
  • No letter of claim has been sent to the defendant before the date on which the Pre-Action Protocol comes into force.

Relevant Time Periods

The Protocol envisages that a claimant may wish to send a Letter of Notification to a defendant as soon as they are aware that a claim is likely to be made but before they are able to send a detailed Letter of Claim. The Letter of Notification would not start a timetable for the formal Letter of Response, however the Letter of Notification should be acknowledged within 14 days.

The Letter of Claim is the document that will start the process.

The Letter of Response should be sent within 42 days.

The defendant should have six months to investigate and respond to a claim before proceedings are issued. This is an important consideration having regard to the fact that the end defendant is not always the party with possession of the requisite documents and detail required and expected by the disclosure process. 

Letter of Claim

It should contain a clear summary of the facts on which the claim is based together with an indication of the nature of any illness or injuries suffered and the ways in which these impact on the claimants day to day functioning and prognosis.

Any financial loss incurred by the claimant should be outlined with an indication of the heads of damage to be claimed and the total amount of loss.

There should be sufficient information to enable a defendant to estimate the likely size and heads of claim.

Letter of Response

It must confirm if the defendant will be handling the claim or provide details of any legal or other representative appointed.

Where there is no reply to the Letter of Claim within 42 days the claimant may issue proceedings.

No later than the end of the 6 month period the defendant should reply stating whether liability is admitted, and if so, confirming that it was caused by the defendant's breach of duty, that the claimant suffered loss, and that there was no defence under the Limitation Act 1980.

If the defendant denies liability the full version of events should be supplied together with all details and documents material to the issues between the parties.

Any admission of liability will be binding in litigation subject to the provisions of CPR Part 14.1A.

Disclosure

The aim of the Protocol is not to encourage 'fishing expeditions' by the claimant, but to promote an early exchange of 'relevant' information to help in clarifying or resolving issues in dispute.

Claimants legal representatives should assist by identifying in their Letter of Claim or in subsequent correspondence, the particular categories of documents which they consider to be relevant and why with a brief explanation.

Parties will need to give careful consideration to the anticipated disclosure pre-action as where either party considers there may have been insufficient disclosure, they may be able to make application to the court for pre-action disclosure under CPR part 31.

It is in this area where travel operators and their claims handlers currently face enormous pressure, as it is standard practice for claimants' legal representatives to issue blanket pre-action disclosure applications where they have not had a satisfactory reply from the defendant.

Having regard to the number of claims presented, it is not always possible for claims handlers to respond to either the claims or requests for disclosure and time after time pre-action disclosure orders are granted on paper without any representation from the defendant.

It is encouraging therefore that the protocol focuses on disclosure which is relevant and requires a party to justify that relevance.

Travel companies will need to implement effective acknowledgment and validation processes with a view to stemming the tide of pre-action disclosure applications. In most cases these can be defeated as "cost building" exercises, but they must be responded to within adequate time periods.

Disclosure by the defendant

Where liability is denied, the defendants should disclose relevant documents that would be relied upon in support of the defence. Such documents "may" include:

  1. hygiene and safety records;
  2. records of the food and drink supplier to and/or consumed by the claimant during the period of the stay; and
  3. a copy of any record of any report of gastric illness made by or on behalf of the claimant to the hotel or resort during the period of their stay.

Disclosure by the claimant

Where liability is denied, disclosure by the claimant should include:

  1. relevant medical records referring to the specific symptoms of the gastric illness to which the claim relates;
  2. details of all attendances on the claimant's GP or hospital attendances and any relevant treatment received with regard to similar or other gastric illnesses;
  3. all other medical records relating to the entire prognosis period;
  4. details of any other package travel claims made by the claimant;
  5. receipts or other proof of purchase in respect of any medication in respect of which reimbursement is sought.

Interestingly, the protocol provides that the parties are under a duty to preserve documents that they may be required to disclose and that destruction of any such documents may amount to an abuse of the court process. This is particularly significant in light of the wealth of evidence within social media. There are no specific provisions that social media evidence be preserved. It is anticipated that a court in any subsequent litigation would not look favourably on a claimant who has deliberately removed social media evidence.

Medical evidence

Where the duration of symptoms is not longer than 28 days, it is anticipated that the medical report will be obtained from a GP. Where symptoms persist for more than 28 days, a report from a GP may be insufficient and the parties are expected to consult and agree the appropriate speciality of the expert. The expert must have sight of the claimant's medical records.

It is anticipated that in most circumstances, there will only be one expert with the defendant putting Part 35 questions to that expert.

The protocol furthermore encourages the use of Part 36 as a negotiation mechanism.

Next steps

The draft Pre-Action Protocol has been worked on by the Civil Justice Committee and the Civil Procedure Rule Committee, with the latter also working on the necessary rule changes required to bring into effect the proposed Pre-Action Protocol. As at the February meeting of the CPRC there was still work to do on finalising both the Pre-Action Protocol and the rule changes albeit the aim was still to be ready for them to come into force in April. The minutes of the March CPRC meeting have not yet been made public so we do not yet know if the work is now complete, but we understand that they may now come into force in May.

Contact

For further information, please contact Miles Hepworth on 0121 200 0471 or at miles.hepworth@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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