UK: Rule Changes To Cure ‘Epidemic' Of Holiday Sickness Claims Published

Last Updated: 18 April 2018
Article by Clyde & Co LLP

Most Read Contributor in UK, November 2018

It has been announced that changes to the legal costs recoverable for holiday sickness claims will come into effect on 7 May 2018.

The Ministry of Justice confirmed last week that the Civil Procedure Rule Committee had agreed to proposed changes bringing holiday sickness claims into a fixed costs regime.  The Pre-Action Protocol for Resolution of Package Travel Claims has now been published.

The changes will come into effect on 7 May 2018, and will apply to any claims notified after that date.

As we proposed in a previous article, the Pre-Action Protocol for Resolution of Package Travel Claims will apply to claims arising from gastric illnesses contracted during package holidays where the Package Travel, Package Holiday and Package Tours Regulations 1992 (Regulations) are engaged.

The Pre-Action Protocol will apply to claims up to £25,000, and contains detailed provisions for the parties in respect of disclosure and correspondence such as the letter of claim.

The move has been welcomed by the Association of British Travel Agents (ABTA), who had been critical of any further delays in implementing the change.

ABTA had been firmly of the view that the move to a fixed costs regime need to take place ahead of the summer 2018 holiday season to prevent any further rise in claim numbers, referring to a YouGov survey which found that almost one in five British adults had been contacted about making a compensation claim for holiday sickness.

Recent case raises interesting questions

The recently reported case of Worrall v Thomas Cook provided an alternative take on holiday sickness claims and how they can be framed beyond allegations of personal injury.

The Claimant sent a Letter of Claim alleging (among other matters) that the food served on her holiday was unsafe and not of satisfactory quality.

The Defendant replied, "Please note primary liability is admitted subject to proof of actual illness plus any of causation and quantum which may arise".

The Claimant argued the admission should be construed as meaning the Defendant's supplier exposed the Claimant to a pathogen. The Defendant pleaded that the Claimant still had to prove both that she was served, then ate contaminated food, and the admission meant only food hygiene was not of a proper standard at the time of the holiday. It was merely an admission that prior to the Claimant falling ill, contaminated food was served (although not necessarily to the Claimant).

The judge preferred the Claimant's submissions. The Claimant's claim was in contract; and serving contaminated food to the Claimant was a breach of contract, entitling the Claimant to nominal damages, whether or not the Claimant becomes ill.   Of note, the new Pre-Action Protocol covers breaches of contract resulting in gastric illness, but this claim indicated that such illness is not necessary for an award of damages.

Therefore, on the face of it, the judgment could be considered to be a major decision in favour of claimants.

However, the claim was in contract and it is highly unlikely that contractual claims such as this will exceed the small claims track limit of £10,000 for a financial loss. Indeed, the award of nominal damages indicates that a percentage of the package holiday cost will be awarded.

We do not expect that claimant firms will actively look to pursue holiday sickness claims in contract, as irrespective of the changes to the costs regime, a personal injury action alleging sickness will still attract greater costs recovery.

Nonetheless, this is an interesting decision, and potentially offers an alternative avenue to Claimants for compensation, should they be able to prove - and obtain an admission - that contaminated food was served at the time they were on holiday.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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