The SRA has responded to the huge increase in holiday sickness claims by issuing a warning notice on 6 September 2017.
The notice raised concern that some claimant’s solicitors are not undertaking a proper analysis of the evidence or have an understanding of the legal position resulting in a large quantity of ‘false or dubious’ claims, which at best lack merit, and at worst are fraudulent. The SRA has also seen evidence of claimant’s solicitors pursing claims without proper instructions of claimants. The notice comes after ABTA has seen a 500% increase in holiday sickness claims since 2013. The SRA are investigating more than 12 firms.
When deciding which claims to pursue, the notice reminds claimant’s solicitors of risk factors that are commonly found in dubious holiday sickness claims. These factors include a large time-lapse between the claim and the alleged illness, no report of the claim being filed with the hotel, the absence of extensive sickness amongst other hotel guests and the involvement of third parties, such as claims management firms in generating the claim in resort.
The SRA has also seen instances of documentary evidence not being properly analysed and claimants being advised to destroy evidence. The notice stresses that, in order to uphold the proper administration of justice, evidence must be preserved and available for claimant’s solicitors to review. Relevant documents whether favourable or not should be disclosed at the relevant stages of litigation. It is therefore somewhat concerning that claimants have been advised by their solicitors to destroy evidence (presumably on the basis they do not support their case).
The warning notice emphasises the importance of claimant’s solicitors in taking an active interest in the merits of their client’s cases. Any solicitor who turns a blind eye where they did suspect or should have suspected that a claim brought to them had no legal or factual basis will be guilty of dishonesty and in breach of the SRA Code of Conduct.
On a related point the House of Lords have been given an opportunity to put an end to cold calls by case management firms by supporting an amendment to the Financial Guidance and Claims Bill which would put into legislation the end of unsolicited touting for claims. The House of Lords will debate this on Wednesday.
We have been assisting clients at the early stages of a claim in drafting robust protocol letters of reply which has resulted in claims being withdrawn at this early stage. We strongly advise clients to collect as much evidence as possible after receipt of a letter of claim and to ensure that detailed protocol letters of reply are sent to the claimant’s solicitors.