In this blog post, James Beeton of 12 King’s Bench Walk sets out the key features of the new Pre-action Protocol for the Resolution of Package Travel Claims. The main points to note are: (i) the extension to gastric illness claims of the fixed recoverable costs regime in Part 45, (ii) a prescriptive system of claims notification and response, (iii) accelerated disclosure obligations (including potentially onerous disclosure requirements on defendants) and (iv) confirmation that an expert medical report from a GP followed by Part 35 questions is likely to continue to represent the totality of the expert evidence in the vast majority of cases.
Scope of the Protocol
Claims for gastric illness contracted during a package holiday with a value of less than £25,000 will be governed by the Pre-action Protocol for Resolution of Package Travel Claims where the letter of claim is sent to the defendant after 7 May 2018 (para. 4.1).
Litigants in person are expected to comply with the Pre-action Protocol ‘insofar as is reasonably possible’ (para. 6.1) and represented parties should send a copy of the Protocol to any litigant in person at the earliest possible opportunity (para. 6.2).
The Pre-action Protocol does not apply in a number of situations, including:
- Claims for injuries suffered in the course of package holidays not involving gastric illness;
- Claims under the Athens Convention or the Montreal Convention (para. 1.1(13)(c));
- Where the person suffering illness is deceased (para. 4.3(1));
- Where the claimant or defendant is a protected party under CPR r. 21.1(2) (para. 4.3(2));
- Where the claimant is bankrupt (para. 4.3(3)); or
- Where the defendant is insolvent and there is no identifiable insurer (para. 4.3(4)).
CPR r. 45.29A was amended with effect from 7 May 2018 such that Section IIIA of Part 45 (Claims Which No Longer Continue Under the RTA or EL/PL Pre-Action Protocols and Claims to Which the Pre-Action Protocol for Resolution of Package Travel Claims Applies) now applies the fixed recoverable costs regime to claims to which the Pre-Action Protocol applies.
The only costs recoverable (subject to a claim for exceptional circumstances costs under CPR r. 45.29J) are those fixed by Table 6D of CPR r. 45.29E along with disbursements in accordance with CPR r. 45.29I. The fixed costs recoverable in gastric illness claims are the same as those recoverable in public liability claims generally, including in respect of interim applications (CPR r. 45.29H(1A)).
The fixed costs ‘cap’ on a defendant’s recoverable costs is also applied by CPR r. 45.29F (although those costs will in practice usually be subject to QOCS in any event).
The Part 36 provisions dealing with the costs consequences of acceptance of Part 36 offers in fixed recoverable costs cases (CPR r. 36.20) and the costs consequences following judgment in such cases (CPR r. 36.21) have both been extended to encompass claims to which the new Protocol applies.
Notification of the Claim
Before taking any substantive steps, the claimant is required to produce an indexed and paginated bundle of his medical records (para. 7.1). There is no requirement to disclose the bundle to the defendant at this stage (although the Specimen Standard Disclosure List at Annex B suggests that any relevant records should be disclosed upon a denial of liability by the defendant).
The claimant may (not ‘must’) then notify the defendant that a claim is pending (para. 8.1) with a letter containing the information at paras. 8.2 to 8.5. A letter of notification will not start the timetable for the defendant’s letter of response.
The claimant must then send a formal letter of claim. The letter of claim should detail a number of matters set out at para. 9.1 and in the Pre-action Protocol’s Template Letter of Claim, annexed at Annex A1. These state that the letter of claim’s summary of facts should include, inter alia:
- Whether any other person who travelled on the same booking reference also fell ill;
- Whether the claimant went on any excursions and ate or drank outside of the resort, with details if applicable;
- Whether any medication was taken, if so what type and over what period;
- Whether the illness was reported to anyone at the resort and if so to who and on what date;
- Whether the claimant went to their GP on returning to the UK and, if so, on what date;
- Whether the claimant went to the hospital on returning to the UK and, if so, on what date;
- If medical attention was sought were any tests carried out and was any pathogen identified. If medical treatment involved isolation, provide duration;
- Whether any other guests, in the claimants booking or otherwise, reported illness and, if so, their details.
Responding to the Claim
The defendant must acknowledge receipt of the letter of claim within 42 days of posting of the letter (para. 10.1), failing which the claimant will be entitled to issue proceedings (para. 10.4).
Once an acknowledgment of the letter of claim has been issued, the defendant will have a maximum of six months to investigate (para. 10.5). No later than the expiry of the six-month investigation period, the defendant must send a full letter of response. A template of the letter of response is annexed to the Pre-Action Protocol at Annex A2. The defendant should set out its case on liability and causation (para. 10.6) and should specifically raise any ‘significant omissions from the letter of claim’ in its letter of response (para. 10.4).
The defendant should enclose with the response any documents which are material to the case and which would be ‘likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings’ (para. 10.6).
Annex B to the Pre-action Protocol contains a specimen list of documents likely to be material in a package travel claim. Some of these are likely to be uncontroversial (i.e. contractual documents such as brochures, booking confirmations and terms and conditions), but others may be held by the foreign hotel only and therefore present substantial difficulties for an English tour operator to obtain. The defendant’s disclosure is envisaged to include:
- Accident/illness reports;
- Illness records for other guests at the hotel;
- Health and safety reports in respect of the hotel;
- Food and hygiene training documents for hotel employees;
- Food temperature checks;
- Freezer and refrigerator temperature checks; and
- Swimming pool maintenance/testing documents.
Upon communication of a denial of liability by the defendant, the Specimen Standard Disclosure List suggests that the claimant is required to disclose, inter alia, photographs from the holiday (together with their metadata where available) and any social media posts from a month before to a month after the period of illness.
The Protocol promotes the practice of the claimant obtaining a medical report and disclosing it to the defendant, who then asks questions of the expert without obtaining their own report (para. 12.1). In cases where the duration of gastric illness was under 28 days (i.e. the vast majority of cases), the Protocol envisages that the medical report will be from a GP (para. 12.2). These reports are therefore likely to continue to be the norm in gastric illness claims.
However, the parties may obtain further expert reports after proceedings have commenced with the permission of the court (para. 12.11). Defendants should remain alive to this possibility when faced with unpersuasive standard-form reports.
The other party’s consent to the instruction of a particular expert should be sought in advance of their instruction (paras. 12.4 to 12.7). A failure by the defendant to object to the instruction of an expert nominated by the claimant will mean that they are unable to rely on their own expert evidence in that area of expertise save in certain circumstances or with the court’s permission (para. 12.8).
Where the defendant admits liability pre-issue, the claimant should supply (i) any medical reports on which he relies and (ii) a schedule of loss (para. 13.1). Issue of proceedings should then be delayed for 21 days from disclosure of those documents unless the claim will be become time-barred (para. 13.2).