Firm signs of progress towards fixing costs in holiday sickness claims

05 Jan 2018

Claims for gastric illness sustained on all-inclusive holidays are a discrete area in which fixed recoverable costs look very likely to be introduced earlier than in the full range of fast track cases (as was recommended by Lord Justice Jackson in July).

The Ministry of Justice (MoJ) ran a call for evidence over a short period last autumn after the Lord Chancellor announced a crackdown on fake holiday sickness claims earlier in the summer. Shortly after that, the Solicitors Regulation Authority issued a formal warning notice outlining its concerns about certain behaviours in this sector.

Two recent further developments are worth noting.

1. The first is a fairly non-committal written answer from MoJ Minister Dr Philip Lee on 27 December 2017, which mentions the call for evidence and talks of announcing next steps “in due course” (see PQ 120252).

2. The second, which may give a clearer indication as to the likely timetable, is that on 2 January 2018 the MoJ approached stakeholders again to request further information about the specific issues raised in handling holiday gastric illness (GI) claims. It is seeking views, on behalf of the Civil Procedure Rule (CPR) Committee and by 15 January 2018, on the questions below. The information it collects will be considered when refining wording for necessary CPR and protocol amendments. It has also clarified that is it not currently proposed that these cases would go through the Claims Portal.

  • The manner and extent to which, if at all, the handling of such these claims differs from the other PI pre-action protocols (PAPs)?
  • What work and/or evidence is required at each stage of the claim?
  • What critical factual information is required from the claimant in the letter of claim to facilitate prompt investigation?
  • What is required to ensure that liability is determined and, thereafter, a fair settlement achieved expeditiously at the pre-action stage?
  • What timescales would be appropriate in such cases?  
  • Given the wording of existing PI PAPs, what aspects of existing Pre-Action Protocols might be suitable for GI claims?

The short new deadline could indicate that the MoJ / Rule Committee is aiming to draft and approve CPR amendments for these claims in time for the April 2018 update to the CPR (or shortly thereafter). As far as we can judge, the intention is that any new provisions on fixed costs would apply to cases notified after the new rules come into force (an approach which would capture claims quickly but could lead to a short term spike in notifications before new rules apply).

It is clear that so-called GI claims are under close Government and regulatory scrutiny at present. We are hosting a joint roundtable with the SRA on and key stakeholders on 8 January to discuss current issues and concerns in holiday GI claims and will provide a further update as soon as we can after this event.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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