The Ministry of Justice has confirmed that the Civil Procedure Rule Committee has agreed to the proposed changes to bring holiday sickness claims into a fixed costs regime.
The statement indicates that the Civil Procedure Rules will be updated today, and will come into effect shortly.
As set out in our previous article, we expect that the Pre-Action Protocol for Employers and Public Liability claims will need to be amended to ensure Fixed Recoverable Costs apply to claims where the Package Travel, Package Holiday and Package Tours Regulations 1992 (Regulations) are engaged.
The move was welcomed by the Association of British Travel Agents (ABTA), who had been critical of any further delays in implementing the change.
ABTA had been firmly of the view that the move to a fixed costs regime need to take place ahead of the summer 2018 holiday season to prevent any further rise in claim numbers, referring to a YouGov survey which found that almost one in five British adults had been contacted about making a compensation claim for holiday sickness.
Recent case raises interesting questions
The recently reported case of Worrall v Thomas Cook provided an alternative take on holiday sickness claims and how they can be framed beyond allegations of personal injury.
The Claimant sent a Letter of Claim alleging (among other matters) that the food served on her holiday was unsafe and not of satisfactory quality.
The Defendant replied, "Please note primary liability is admitted subject to proof of actual illness plus any of causation and quantum which may arise”.
The Claimant argued the admission should be construed as meaning the Defendant’s supplier exposed the Claimant to a pathogen. The Defendant pleaded that the Claimant still had to prove both that she was served, then ate contaminated food, and the admission meant only food hygiene was not of a proper standard at the time of the holiday. It was merely an admission that prior to the Claimant falling ill, contaminated food was served (although not necessarily to the Claimant).
The judge preferred the Claimant’s submissions. The Claimant’s claim was in contract; and serving contaminated food to the Claimant was a breach of contract, entitling the Claimant to nominal damages, whether or not the Claimant becomes ill.
On the face of it, the judgment could be considered to be a major decision in favour of claimants.
However, the claim was in contract and it is highly unlikely that contractual claims such as this will exceed the small claims track limit of £10,000 for a financial loss. Indeed, the award of nominal damages indicates that a percentage of the package holiday cost will be awarded.
We do not expect that claimant firms will actively look to pursue holiday sickness claims in contract, as irrespective of the changes to the costs regime, a personal injury action alleging sickness will still attract greater costs recovery.
Nonetheless, this is an interesting decision, and potentially offers an alternative avenue to Claimants for compensation, should they be able to prove - and obtain an admission - that contaminated food was served at the time they were on holiday.