Following the creation of the new Pre-Action Protocol for Package Travel Claims, the fixed costs applicable to public liability claims will apply to claims for gastric illness contracted on package holidays.
Seen by many as vulnerable to exploitation by dishonest Claimants and an area in which Claimants' solicitors have escaped the fixed costs applicable to other fast track claims, claims for gastric illness will fall within the remit of the fixed costs regime introduced by Lord Justice Jackson's reforms of 2013, the allowed costs being those for public liability claims which no longer continue in the Low Value Protocol.
The Pre-Action Protocol does not require claims to be submitted through a Portal, but instead sees them commenced by letters of claim and will apply where "no letter of claim was sent before 7 May 2018". Taking into account the fact that many claims require investigations overseas, the Defendants have 42 days in which to acknowledge claims (rather than 21) and six months (instead of three) in which to respond on liability.
Concern at the exploitation of this type of claim by fraudsters has seen the Protocol provide that Claimants must provide the booking reference for their holiday when presenting the claim, and, unlike the position for claims proceeding within the Portal, experts should be jointly selected and the Defendant has facilities to raise questions of the expert on whose evidence the Claimant relies.
The extension of fixed costs and introduction of the Pre-Action Protocol will clearly reduce the overall cost of claims for travel sickness and we may now see the volume of such claims fall. We have in the past witnessed firms moving from whiplash to deafness to travel sickness claims, which leads us to question whether this procedural change will result in a lower number of injury claims overall, as squeezing the balloon has so often resulted in a bulge of unexpected claims elsewhere.