The days when tour operators could cobble together a defence to a holiday-horror claim at the doors of the court are over.
At a holiday litigation seminar in London, lawyers warned that new civil-justice reforms which came into effect on April 26 are geared to speeding up the legal process and, where possible, ensuring cases are settled out of court.
Stephen Mason, of the law firm Mason Bond, said tour operators who find themselves facing a legal battle with a holidaymaker in search of compensation will have to gather together evidence to fight the claim as soon as the claim is received. The claimant fires the starting gun and the defendant (the operator) is then playing catch-up. Holiday companies will have to decide at an early stage if they want to fight.
An operator who opts against settling must comply with new pre-action protocols which lay down strict requirements on how the case should proceed and adhere to a strict timetable.
The new rules require defendants to do much more than simply deny liability at the outset. They have to respond to the claim within 21 days, and if they intend to fight the case, they need to give detailed documentary evidence to substantiate the denial.
That could include documentary evidence such as local health-and-safety requirements. Mason urged every operator to ensure that resort staff have access to a camera so photographs can be taken as soon as possible after the event which led to the claim.
The good news for operators is that the reforms introduce the concept of proportionality. This means cases will be dealt with in proportion to the amount of money involved, so holidaymakers bringing trivial claims or those who want to trot out 10 witnesses to testify how bad the food was, will face having their claim struck out.
Class actions or multi-party actions where groups of holidaymakers band together to fight for compensation are on the increase, but the travel industry has been slow to learn how to defend itself, according to travel lawyer Stephen Mason of Mason Bond.
“Operators can use different tactics to fight a multi-party action whether it is to pick off the ring-leader and hope the rest will disintegrate, or act like a lion prowling around a pack of zebras and attack the weakest ones to whittle away at the group. Whichever it is, it needs to be a tactic that is thought through,” said Mason.
According to Mason, operators must ensure they have information on all the claimants involved in the action, including details such as whether they made any complaints in resort and whether a compensation offer was made.
Many operators have a system of offering compensation in resort but it is surprising how many are not able to tie up what happens in resort with what is known in head office, he said. “It is also important to find out from overseas staff whether everybody on the holiday feels the same way or whether the claimants are a group of moaning minnies and were the only thing to spoil the holiday for the rest,” said Mason.
Tour operators could be liable for accidents happening to clients on excursions from resorts if the trips are promoted in the brochure, barrister Alan Saggerson has warned.
He advised operators to remove references to excursions from brochures even if the trips can only be booked in resort.
If an excursion is purchased locally for a separate price, it is normally outside the 1992 Package Travel Regulations. But a claimant could argue that the excursion, if it was mentioned in the brochure and offered for sale at an inclusive price in the UK, it was covered by the regulations, he said.
Saggerson also warned that operators should make it clear in the brochure small print that the standards by which they will be judged in such areas as health, hygiene and safety are those applicable to the country where the holiday was taken, and not the standards that apply at home.
Plaintiffs believe that English standards will apply, but courts in this country are reluctant to export the UK’s standards to foreign countries.
Operators should follow Foreign Office warnings against travel to risky destinations, travel lawyer Peter Stewart of Field Fisher Waterhouse has warned. “Our advice is if Foreign Office advice is against non-essential travel or higher, they are taking risks by sending customers there. If the operator goes against the non-essential travel advice, the burden of proof is on them to demonstrate what information they had to justify the decision to ignore the advice.”
n Documentation from the conference costs £69. For details, call 0121 355 0900.