The Pre-Action Protocol for Resolution of Package Travel Claims is approved by the Master of the Rolls as Head of Civil Justice.

Transcription

1 The Pre-Action Protocol for Resolution of Package Travel Claims is approved by the Master of the Rolls as Head of Civil Justice. The Right Honourable Sir Terence Etherton Master of the Rolls and Head of Civil Justice Date: 27 th March 2018 PRE-ACTION PROTOCOL FOR RESOLUTION OF PACKAGE TRAVEL CLAIMS Contents Title Number SECTION 1 - INTRODUCTION Definitions Para. 1.1 Preamble Para. 2.1 Aims Para. 3.1 Scope Para. 4.1 SECTION 2 GENERAL PROVISIONS Time periods Para. 5.1 Claimants without a legal representative Para. 6.1 SECTION 3 THE PROTOCOL Medical records Para. 7.1 Letter of notification Para. 8.1 Letter of claim Para. 9.1 Letter of response Para Disclosure Para Experts Para Negotiations following an admission Para Alternative Dispute Resolution Para Stocktake Para Annex A - Template Letters of Claim and Response Annex B - Specimen Standard Disclosure List

2 SECTION I - INTRODUCTION Definitions 1.1 In this Protocol (1) admission of liability means the defendant admits that (a) the claimant contracted a gastric illness (as defined below); (b) the defendant thereby caused some loss to the claimant, the nature and extent of which is not admitted; and (c) the defendant has no accrued defence to the claim under the Limitation Act 1980; (2) bank holiday means a bank holiday under the Banking and Financial Dealings Act 1971; (3) business day means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day; (4) certificate of recoverable benefits has the same meaning as in rule 36.22(1)(e)(i) of the Civil Procedure Rules (5) child means a person under 18; (6) claim means a claim, prior to the start of proceedings, for payment of damages under the process set out in this Protocol; (7) claimant means a person starting a claim under this Protocol; unless the context indicated that it means the claimant s legal representative; (8) defendant includes, where the context indicates, the defendant s insurer or legal representative; (9) gastric illness means any gastrointestinal illness arising from a breach of contract or breach of statutory duty or common law duty in respect of services, food and beverages provided in relation to a package holiday; (10) legal representative has the same meaning as in rule 2.3(1) of the Civil Procedure Rules 1998; (11) medical expert means a person who is registered with the General Medical Council; (12) package holiday means a package which is regulated by the Package Travel, Package Holidays and Package Tours Regulations 1992 ( the Package Travel Regulations ) or any subordinate or amending legislation arising from EU Directive 2015/2302; (13) package travel claim - (a) means a claim for damages for gastric illness contracted during a package holiday, and (b) may include a claim for diminution in value or loss of enjoyment suffered by the same claimant, but (c) excludes a claim under the Athens convention or the Montréal Convention;

3 (14) pecuniary losses means past and future expenses and losses; (15) vulnerable adult has the same meaning as in paragraph 3(5) of Schedule 1 to the Legal Aid Sentencing and Punishment of Offenders Act A reference to a rule or practice direction, unless otherwise defined, is a reference to a rule in the Civil Procedure Rules 1998 ( CPR ) or a practice direction supplementing them. Preamble 2.1 This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than 25,000 in a Package Travel claim. If, at any stage, the claimant values the claim at more than the upper limit of the fast track, the claimant should notify the defendant as soon as possible. 2.2 The Civil Procedure Rules enable the court to impose costs sanctions where either party fails to comply with this Protocol. Aims 3.1 The aims of this Protocol are to (1) encourage the exchange of early and full information about the claim; (2) encourage better and earlier pre-action investigation by all parties; (3) enable the parties to avoid litigation by agreeing settlement of the dispute before proceedings are commenced; (4) enable the parties to narrow the issues in dispute before proceedings are commenced; and (5) support the proportionate and efficient management of proceedings where litigation cannot be avoided. Scope 4.1 This protocol applies where (1) the claim arises from a gastric illness contracted during a package holiday; (2) no letter of claim has been sent to the defendant before 7 th May 2018; (3) the claim includes damages in respect of personal injury; and (4) the claimant values the claim at not more than 25,000 on a full liability basis including pecuniary loss but excluding interest ( the upper limit ). 4.2 This Protocol ceases to apply to a claim where, at any stage, the claimant notifies the defendant the claim has been revalued at more than the upper limit. However, the spirit, if

4 not the letter of this Protocol should still be followed for claims which could potentially be allocated to the multi-track. 4.3 This Protocol does not apply to a claim (1) where the claimant or defendant acts as personal representative of a deceased person; (2) where the claimant or defendant is a protected party as defined in rule 21.1(2); (3) where the claimant is bankrupt; or (4) where the defendant is insolvent and there is no identifiable insurer. SECTION II GENERAL PROVISIONS Time periods 5.1 Reference to a fixed number of days is a reference to business days as defined in paragraph 1.1(3). 5.2 Where a party should respond within a fixed number of days, the period for response starts the first business day after the information was sent to that party. 5.3 All time periods specified in this Protocol may be varied by agreement between the parties. Claimants without a legal representative 6.1 If a party to a claim does not seek professional advice from a legal representative they should still, in so far as is reasonably possible, comply with the terms of this Protocol. 6.2 If a party to a claim becomes aware that another party is a litigant in person, they should send a copy of this Protocol to the litigant in person at the earliest opportunity. 6.3 The fixed costs in Section IIIA of Part 45 apply in relation to a claimant only where a claimant has a legal representative.

5 SECTION III - THE PROTOCOL Medical records 7.1 At the earliest opportunity, legible copies of the claimant s medical and other records should be placed in an indexed and paginated bundle by the claimant. This bundle should be kept up to date. 7.2 If either the claimant or the defendant considers additional health records are required from a third party, in the first instance these should be requested by or through the claimant. Third party healthcare providers are expected to co-operate. (Rule deals with the procedure for applying to the court for disclosure by third parties.) Letter of notification 8.1 The claimant or his legal representative may wish to notify a defendant and/or the insurer as soon as they know a claim is likely to be made, but before they are able to send a detailed letter of claim, particularly, for instance, when the defendant has no or limited knowledge of the incident giving rise to the claim, or where the claimant is incurring significant expenditure as a result of the gastric illness which he hopes the defendant might pay for, in whole or in part. 8.2 The letter of notification should advise the defendant and/or the insurer of any relevant information that is available to assist with determining issues of liability and the likely size and heads of the claim and the suitability of the claim for an interim payment. 8.3 Notification of any related claims for damages including any claims for diminution in value or loss of enjoyment suffered by a party who is not also claiming damages for gastric illness should be sent to the defendant at the same time as the claimant sends notification of the package travel claim. 8.4 If the claimant or his legal representative gives notification before sending a letter of claim, it will not start the timetable for the letter of response. However, the letter of notification should be acknowledged by the defendant and/or the defendant s insurer within 14 days of receipt. 8.5 The letter of notification must include the booking number.

6 Letter of claim 9.1 The claimant should send to the proposed defendant a letter of claim which must include a clear summary of the facts on which the claim is based including details of the following (1) the location and date of the alleged breach of duty; (2) the nature of the gastric illness suffered, and the way in which this has impacted on the claimant s day to day functioning and prognosis; (3) the date of the onset of symptoms and whether the medical treatment was sought and, if so, when and from whom; (4) all attendances on the claimant s GP and/or hospital attendances and any relevant treatment received with regard to the gastric illness; (5) a schedule of any financial loss incurred by the claimant; (6) an indication of the further heads of damage to be claimed and the amount of that loss, unless this is impracticable; and (7) any other package travel claims made by the claimant. 9.2 Unless the defendant has provided the claimant with an address to which the letter of claim may be sent, the letter of claim should be sent by first-class post. 9.3 A template for the suggested content of the letter of claim is attached at Annex A1. The level of detail may need to be varied to suit the particular circumstances of the case. In all cases there should be sufficient information to enable the defendant to estimate the likely size and heads of the claim without necessarily addressing quantum in detail. 9.4 Details of the claimant s National Insurance number and date of birth should be supplied to the defendant s insurer once the defendant has responded to the letter of claim and confirmed the identity of the insurer. 9.5 Once the claimant has sent the letter of claim no further investigation on liability should normally be carried out within the Protocol period until a response is received from the defendant indicating whether liability is disputed. Letter of response 10.1 The defendant must acknowledge receipt of the Letter of claim within 42 days of posting of the letter.

7 10.2 A template for the suggested content of the letter of response is attached at Annex A2. The level of detail may need to be varied to suit the particular circumstances of the case The letter of response must confirm if the defendant will be handling the claim or provide particulars of the legal or other representative appointed to act on behalf of the defendant. If the defendant is aware of any significant omissions from the letter of claim they should identify them specifically. Similarly, if they are aware that another defendant has also been identified whom they believe would not be a correct defendant in any proceedings, they should notify the claimant without delay, with reasons, and in any event by the end of the response period Where there has been no reply by or on behalf of the defendant within 42 days, the claimant will be entitled to issue proceedings The defendant will have a maximum of six months from the date of acknowledgment of the letter of claim to investigate. No later than the end of that period, the defendant should reply, stating if liability is admitted by admitting that the gastric illness occurred, that it was caused by the defendant s breach of duty, and the claimant suffered loss and there is no defence under the Limitation Act If a defendant denies liability and/or causation, their version of events should be supplied. The defendant should also enclose with the response, documents in their possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings. No charge will be made for providing copy documents under the Protocol An admission made by any party under this Protocol may well be binding on that party in the litigation. Further information about admissions made under this Protocol is to be found in rule 14.1A Following receipt of the letter of response, if the claimant is aware that there may be a delay of six months or more before the claimant decides if, when and how to proceed, the claimant should keep the defendant generally informed.

8 Disclosure 11.1 The aim of early disclosure of documents by the defendant is not to encourage fishing expeditions by the claimant, but to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute. The claimant s solicitor can assist by identifying in the letter of claim or in a subsequent letter the particular categories of documents which they consider are relevant and why, with a brief explanation of their purported relevance if necessary Pre-action disclosure will generally be limited to the documents required to be enclosed with the letter of claim and the Response. In cases where liability and causation are admitted in full, disclosure will be limited to the documents relevant to quantum, but the parties can agree that further disclosure may be given. If either or both of the parties consider that further disclosure should be given but there is disagreement about some aspect of that process, they may be able to make an application to the court for pre-action disclosure under Part 31 of the CPR. Parties should assist each other and avoid the necessity for such an application Attached at Annex B is a specimen, but non-exhaustive, list of documents likely to be material in a package travel claim The parties are under a duty to preserve documents that they may be required to disclose. Destruction of such documents may amount to an abuse of the court process. Experts 12.1 This Protocol encourages joint selection of, and access to, quantum experts, and, where possible, liability experts. The expert report produced is not a joint report for the purposes of CPR Part 35. The Protocol promotes the practice of the claimant obtaining a medical report, disclosing it to the defendant who then asks questions of the expert and/or agrees it and does not obtain their own report Where the duration of the symptoms of gastric illness was not longer than 28 days, it is expected that the medical report will be obtained from a GP. Where symptoms subsist for more than 28 days a report from a GP may be insufficient and the parties are expected to consult and to agree the appropriate speciality of the expert to be instructed to prepare a report.

9 12.3 In most cases, a report from a non-medical expert will not be required, but a report may be obtained where it is reasonably required to determine liability or to value the claim Before any party instructs an expert, they should give the other party a list of the name(s) of one or more experts in the relevant speciality whom they consider are suitable to instruct Some solicitors choose to obtain medical reports through medical agencies, rather than directly from a specific doctor or hospital. The defendant s prior consent to this should be sought and, if the defendant so requests, the agency should be asked to provide in advance the names of the doctor(s) whom they are considering instructing Within 14 days of providing a list of experts the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert assuming there is one (this is not the same as a joint expert). It must be emphasised that when the claimant nominates an expert in the original letter of claim, the defendant has a further 14 days to object to one or more of the named experts after expiration of the 42 day period within which they have to reply to the letter of claim If the defendant objects to all the listed experts, the parties may then instruct experts of their own choice. It will be for the court to decide, subsequently and if proceedings are issued, whether either party had acted unreasonably If the defendant does not object to an expert nominated by the claimant, they shall not be entitled to rely on their own expert evidence within that expert s area of expertise unless (1) the claimant agrees; (2) the court so directs; or (3) the claimant s expert report has been amended and the claimant is not prepared to disclose the original report Any party may send to an expert written questions on the report. Such questions must be put within 28 days of service of the expert s report and must only be for the purpose of clarification of the report. The expert should send answers to the questions simultaneously to each party.

10 12.10 The cost of a report from an expert will usually be paid by the instructing party: the costs of the expert replying to questions will usually be borne by the party which asks the questions If necessary, after proceedings have commenced and with the permission of the court, the parties may obtain further expert reports. It would be for the court to decide whether the costs of more than one expert s report should be recoverable. Negotiations following an admission 13.1 Where a defendant admits liability which has caused some damage, before proceedings are issued, the claimant should send to that defendant (1) any medical reports obtained under this Protocol on which the claimant relies; and (2) a schedule of any past and future expenses and losses which are claimed, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so. The claimant should keep the defendant informed as to the rate at which their financial loss is progressing throughout the entire Protocol period The claimant should delay issuing proceedings for 21 days from disclosure of (1) and (2) above (unless such delay would cause his claim to become time-barred), to enable the parties to consider whether the claim is capable of settlement CPR Part 36 permits claimants and defendants to make offers to settle preproceedings. Parties should always consider if it is appropriate to make a Part 36 Offer before issuing. If such an offer is made, the party making the offer must always try to supply sufficient evidence and/or information to enable the offer to be properly considered. The level of detail will depend on the value of the claim Alternative Dispute Resolution 14.1 Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of Alternative Dispute Resolution ( ADR ) might enable them to resolve their dispute without commencing proceedings Some of the options for resolving disputes without commencing proceedings are

11 (1) discussions and negotiation (which may or may not include making Part 36 Offers); (2) mediation or conciliation - a third party facilitating a resolution; and (3) early neutral evaluation - a third party giving an informed opinion on the dispute If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR but unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings Information on mediation and other forms of ADR is available in the Jackson ADR Handbook 2 nd Edition (available from Oxford University Press) or at Stocktake 15.1 Where the procedure set out in this Protocol has not resolved the dispute between the parties, each party should undertake a review of its own position and the strengths and weaknesses of its case. The parties should then together consider the evidence and the arguments in order to see whether litigation can be avoided or, if that is not possible, for the issues between the parties to be narrowed before proceedings are issued. The claimant or their solicitor is recommended to invite the defendant to nominate solicitors to act in the proceedings and do so by no later than 14 days before the intended issue date.

12 Annex A: Template Letters of Claim and Response A1: Letter of claim To [Defendant] Dear Sirs, Defendants Booking Reference: Claimant s full name and address: Dates of Holiday: Name of Hotel/Resort and board basis: Room number: We are instructed by our above-named client to claim damages arising from gastric illness contracted whilst on holiday at the above-named hotel/resort. The circumstances giving rise to the claim are as follows; [Clear summary of the facts to include: the nature of the illness, the symptoms, the date of onset and duration of the symptoms; whether the enjoyment of any amenities (e.g. leisure pools, dining, entertainment, tours/excursions) were denied or compromised; whether any other person who travelled on the same booking reference also fell ill.] The reasons why we are alleging fault are: [set out the alleged cause of the illness and why the defendant is alleged to be liable.] [Further information to include: Whether the claimant went on any excursions and ate or drank outside of the resort, with details if applicable. Whether any medication was taken, if so what type and over what period; Whether the illness was reported to anyone at the resort and if so to who and on what date;

13 Whether the claimant went to their GP on returning to the UK and, if so, on what date; Whether the claimant went to the hospital on returning to the UK and, if so, on what date; If medical attention was sought were any tests carried out and was any pathogen identified. If medical treatment involved isolation, provide duration; Whether any other guests, in the claimants booking or otherwise, reported illness and, if so, their details. Loss of Earnings Our client is employed as (occupation) and has had the following time off work (dates of absence). His/Her approximate weekly income is. Other Financial Losses We are also aware of the following (likely) financial losses. At this stage of our enquiries we would expect the documents contained in parts (insert appropriate parts of standard disclosure list) to be relevant to this action. We expect an acknowledgement of this letter within 42 days. Yours faithfully. A2: Letter of response To Claimant s legal representative/ litigant in person Dear Sirs [Claimant s name] v [Defendant s name] We have been instructed to act on behalf of [defendant] in relation to your client s alleged illness whilst on holiday under booking reference [XXX]. [We note that you have also written to [defendant] in connection with this claim. We [do/do not] believe they are a relevant party because [set out reasons]. [In addition, we believe your claim should be directed against [defendant] for the following reasons:]

14 Liability In respect of our client s liability for this illness we admit the illness occurred and that our client is liable for loss and damage to the claimant the extent of which will require quantification. Or admit the illness occurred but deny that our client is responsible for any loss or damage alleged to have been caused for the following reasons: Or do not admit that illness occurred either in the manner described in your letter of claim [or at all] because: Limitation We [do not] intend to raise [a] any limitation defence. Documents We attach copies of the following documents in support of our client s position: You have requested copies of the following documents which we are not enclosing as we do not believe they are relevant for the following reasons: It would assist our investigations if you could supply us with copies of the following documents: Next Steps [admitted cases] Please advise us which medical expert(s) you are proposing to instruct. Please also supply us with your client s schedule of past and future expenses [if any] which are claimed, even if this can only be supplied on a provisional basis at present to assist us with making an appropriate reserve.

15 [non-admitted cases] Please confirm we may now close our file. Alternatively, if you intend to proceed please advise which experts you are proposing to instruct. Alternative Dispute Resolution Include details of any options that may be considered whether on a without prejudice basis or otherwise. Yours faithfully,

16 Annex B: Specimen Standard Disclosure List (Where the original document is not in English and the party has obtained an English translation both documents should be disclosed.) Disclosure by the Defendant to be provided with the letter of response where requested in the letter of claim. (1) A copy of all contractual documents relating to the package holiday purchased by the claimant, including but not limited to: (a) any relevant brochure or other marketing materials; (b) the booking form and any written confirmation of booking; (c) the invoice; (d) the terms and conditions relating to the booking. (2) Any accident\illness report relating to the claimant, including details of any investigations carried out. (3) Any report by the claimant relating to the hotel/resort and/or tour operator. (4) Any records/illness logs and other records detailing the number of complaints of gastric illness made by other guests suitably redacted to omit any personal data staying at the hotel/resort for the period beginning three months prior to the commencement of the stay and ending at the last day of the claimant's stay at the said hotel/resort. (5) Health and safety reports in respect of the hotel/resort, including records of inspections or hygiene safety checks (whether internal or independent) for the period beginning three months prior to the commencement of the stay and ending at the last day of the claimant's stay at the said hotel/resort. (6) Documents providing information, guidance and training to employees or agents of the hotel/resort in relation to food or general hygiene standards. (7) Food temperature checks covering the duration of the claimant s stay at the hotel/resort in respect of all areas in which food is served and for all meals served. (8) Freezer and refrigerator temperature checks covering the duration of the claimant s stay at the hotel/resort in respect of all areas in which food is stored and/or served. (9) Documents relating to any maintenance and/or testing of swimming pools at the hotel/resort and the results of any such tests during the period beginning three months prior to the commencement of the stay and ending at the last day of the claimant's stay at the said hotel/resort.

17 Disclosure to be provided by the Claimant on receipt of a denial of liability (including a denial of causation only). (1) Receipts/proof of purchase for any medication purchased by the claimant to alleviate the alleged symptoms. (2) Details of any excursions/trips/days out and/or consumption of food and drink by the claimant outside the hotel/resort. (3) Any relevant entries within bank and credit card statements of the claimant relating to the period of the stay. (4) Relevant claimant medical records, including all records referring to the specific symptoms, all attendances with regard to similar illness symptoms, all records during the entire prognosis period and all records in relation to any other claim(s) made in relation to holiday illness. (5) Relevant photographs/images taken during the period of stay together with, where available, the associated metadata of any digital images. (6) Social media posts relating to the claimant in the period beginning one month prior to the onset of the alleged symptoms and ending one month after the claimant's recovery.