The MoJ has published a pre-action protocol for resolution of package travel claims which applies to gastric illness claims contracted during a package holiday which will come into force on 7 May 2018. A cruise is considered a package holiday under the Package Travel Regulations 1992 and under the new Package Travel and Linked Travel Arrangements Regulations 2018, which comes into force from 1 July 2018. This new pre‑action protocol in conjunction with changes to the Civil Procedure Rules applies the fixed costs regime set out in the pre-action protocol for low value personal injury (employer's liability and public liability) claims to package holiday claims.
However, paragraph 1.1(13)(c) of the pre-action protocol for resolution of package travel claims specifically excludes gastric illness claims which fall under the Athens Convention 1974 (and therefore EU392/2009 Passenger Liability Regulation (PLR)) or the Montreal Convention. This means that, whereas claimants' solicitors would only be able to recover low-level fixed costs when bringing a gastric illness claim against a hotel, there will be no such restriction on their costs when bringing a gastric illness claim against a cruise line. This is likely to result in claimants' solicitors concentrating their marketing efforts on generating gastric illness claims against cruise lines due to the higher costs recovery. As an example, a successful gastric illness claim brought against a hotel which settles prior to the issue of proceedings for £10,000 would result in a claimant solicitor recovering profit costs of £3,105. An equivalent claim brought against a cruise line is likely to result in a profit costs recovery in excess of £10,000.
We have already brought this issue to the attention of both ABTA and the MoJ and will continue to lobby the MoJ on the importance of removing the exclusion of gastric illness claims brought against cruise lines from the new pre-action protocol for the resolution of package travel claims.