Travlaw partner Nick Parkinson explains the legal struggle over ‘disclosure’ between package organisers and claimant law firms
Travlaw recently successfully defended an application for pre-action disclosure in the case of Openshaw vs Great Rail Journeys in Worcester County Court.
Typically, an application for the disclosure of documents by a claimant – often in the form of a long list – will arise in the context of a claim for personal injury or gastric illness.
The extent of disclosure has been a thorn in the side of the travel industry for many years because most package organisers don’t own or control the hotels they operate to, they contract with third-party suppliers to source accommodation.
To make things more complex, many package organisers contract with a bed bank which has a contract and direct communication with the hotel.
A common trap which organisers faced with a disclosure application often fall into is to say, ‘We don’t have the documents so you can’t have them’.
The problem, as claimants will rightly point out, is that disclosure obligations extend beyond documents a package organiser may have in its possession to any documents which organisers have ‘control’ of.
What does this mean? According to the Civil Procedure Rules – the rules in civil cases in England and Wales – ‘control’ includes documents which a party has, or had, a right to possess or to inspect or to take copies of.
Further, the High Court in Berkeley v Lancer (2021) found: “An arrangement or understanding which gives a party practical or de facto control of a third party’s documents is sufficient to constitute control for disclosure purposes.
“There must be an arrangement or understanding that the holder of the documents will search for relevant documents or make documents available to be searched.”
This presents a potential problem for package organisers. There is often, but not always, a clause in supplier contracts which places an obligation on accommodation suppliers to ‘provide reasonable assistance’ in defending consumer claims.
There may even be a detailed ‘Claims Handling Agreement’ specifying the level of co-operation expected in detail. In these cases, claimant firms will insist a package organiser has ‘control’ over documents held by the hotel.
However, a package organiser won’t know in some cases what, if any, relevant documents a hotel is holding. If hotel is third-party owned and situated overseas, the organiser can ask for the documents but has no guarantee it will get them.
What happens if the hotel or its insurers refuse or simply fail to co-operate? Can a court order a package organiser to comply with a disclosure request in any event on the basis that it has ‘a contractual right’ to these documents and therefore ‘control’ of them?
Personally, I’m not convinced. Ultimately, a contractual obligation is just a piece of paper. It’s not a ‘magic wand’ that makes documents appear.
In the case of Openshaw, the claimant was and is pursuing a claim for personal injury.
The defendant, Great Rail Journeys, obtained various documents from the hotel and provided them to the claimant.
It made clear to the claimant’s lawyers that it did not have any more relevant documents in its possession, and that it had passed on the disclosure requests to the hotel/its insurer but had received no further response.
Despite this, the claimant applied for a court order requiring Great Rail make further disclosure.
The claimant accepted Great Rail did not possess the relevant documents but argued that, because Great Rail is liable for its suppliers under the Package Travel Regulations, it must have ‘control’ of the documents.
If correct, this argument would have far-reaching implications for the travel industry.
Fortunately, District Judge Khan concluded that the documents requested by the claimant were not in the defendant’s control on the basis that the defendant had “already done everything it could to try and provide the documentation” and, as such, “it was unreasonable to make the order requested by the Claimant”.
This is certainly not the last chapter in the ‘disclosure war’ between claimant firms and package organisers. The decision is not binding on other Courts and, in any case, such decisions are ‘fact sensitive’ which inevitably leads to different outcomes.
The Judge in this case was persuaded by the witness evidence and documents to demonstrate Great Rail had indeed ‘done everything it could’.
The best advice, therefore, is to be well prepared for any court hearing for pre-action disclosure. Better yet, engage with the claimant before the action to try to avoid court applications being made.
If you are being pressed for disclosure, threatened with court applications or simply want to discuss the issues raised, get in touch with nick@travlaw.co.uk