Opinion: Fake claims in Spain

More: Madrid lawyer hails fake claims fight

Holiday sickness fraud is the subject of a criminal investigation in Mallorca, Madrid-based lawyer Marie Rogers explains

Local police in Mallorca opened a criminal investigation code-named Operation Hook in late 2017.

It targeted the activity of a British national resident in Spain, Laura Cameron, and what is believed to be a family business of approaching British tourists on holiday and collecting their personal data to sell on to law firms in the UK.

Collecting or ‘farming’ data from consumers in Spain is not illegal so long as the consumer is fully informed of the intended use and expressly consents to that usage. So why is there a criminal investigation?

During 2015-17 the Spanish hotel sector witnessed thousands of gastric illness claims and the suspicion is most of these claims were bogus.

What turned a history of ordinary, isolated incidents of gastric illness in Spanish hotels into a potential multimillion-euro fraud?

As Spanish hotels see it, there was one significant development in or about early 2015 which changed gastric-illness claims and that was the role of ‘claims’ farmers’ working on their own or through a legal entity in Spain with the sole task of collecting British holidaymakers’ data.

These claims’ farmers would troll Spanish airports and hotel lobbies, right under the noses of local hotels. They would collect the names and home addresses of thousands of British tourists holidaying in Spain to sell on in bulk to UK lawyers.

The UK lawyers would then follow up with these British tourists to offer their services in a claim for gastric illness and seek compensation from the UK tour operator.

The tour operator, in turn, would recover any compensation paid to the tourist and their lawyers from the Spanish hotel or the hotel’s insurer. It was easy money for the claimants and for the UK lawyers.

To be fair to British tourists, given the millions who come to Spain each year, we are talking about a very small percentage of fraudsters yet numbered in their thousands.

An international scam was born – generated and marketed by the claims’ farmers in Spain.

‘Curb the enthusiasm’

Spanish hotels felt something had to be done in Spain to curb the enthusiasm for these claims. The result was the Guardia Civil criminal investigation, Operation Hook.

However, pursuing criminal convictions in Spain is far from simple.

The Spanish public prosecutor will need to show that Ms Cameron intended to use the data collected to perpetrate a fraud – and, specifically, a fraud on Spanish hotels by British tourists regarding gastric illness allegedly suffered at those hotels.

There is a lot of evidence to suggest claims were ‘encouraged’ by the claims’ farmers. For a start, the farming of claims in Spain was highly selective.

The claims’ farmers only targeted British tourists on all-inclusive package holidays purchased from UK tour operators. It would appear they were uninterested in the general welfare of British tourists.

To encourage British tourists to part with their personal data, something was given in exchange. It can be reasonably assumed the claims farmer would have educated the tourists on how easy it was to bring a claim for gastric illness in the UK.

But what cannot be proven easily, regardless of the thousands of claims, is that this resulted in bogus claims.

All claims pursued in the UK were in strict accordance with EU and UK law and presented by UK lawyers.

On the assumption that the UK lawyers believed their clients were acting in good faith, there is no proof of a crime or a conspiracy to defraud in the UK.

On the few occasions where there was clear evidence of fraud, tour operators sought and won criminal convictions in the UK.

Investigations continue

As a result of the investigations so far, and at the request of the public prosecutor, the local criminal court in Mallorca has frozen Cameron’s corporate bank accounts and the bank accounts will stay frozen until Spain’s Guardia Civil completes its report on any potential criminal activity.

In the meantime, there is understood to be a collaborative effort between the Guardia Civil in Mallorca and Interpol [the international criminal police organisation] and an extended investigation into similar data-collection operations in the Canary Islands.

Given the difficulty of identifying a crime in Spain or the UK, the proceedings may eventually fizzle out – so what is the purpose of the continuing investigation in Spain?

One suspects it is intended as a deterrent to other claims’ farmers. The freezing of bank accounts gets the message home, as does the fact that Cameron will be forced to pay Spanish lawyers to defend her, the fact that her name has been made public, and that she is a ‘foreigner’ in Spain up against the Spanish criminal system.

For British tourists, unfortunately, the fraud of the few has blighted the reputation of the many.

Marie Rogers is a partner at Madrid law firm Rogers & Co

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