FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH

The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims.  The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance given here, particularly the need to properly investigate the facts and advise in relation to the preservation and retention of evidence, is of wider interest.

THE NEED TO CHECK THE EVIDENCE

It is no secret that there has been a rapid expansion in holiday sickness claims.  Nor is at a secret that that some of this expansion has not been legitimate.

The SRA observe

“Holiday claims provide an example of our concern that some law firms fail to engage properly, or sometimes at all, with the merits of their clients’ cases. This is of particular concern where there is evidence to suggest that the claim is false or dubious in some way. We are clear in our view that lawyers should not bring cases, or continue with them, where there is a serious concern about the honesty or reliability of the evidence.”

WARNING SIGNS

The SRA guidance
“The extent to which law firms should verify their clients’ cases is risk-specific. For example, there seems to be a serious risk that many holiday sickness claims are not genuine. Examples of risk factors in holiday sickness claims would include:
  • The claim is made some time after the alleged incident
  • There was no report of the claim to the hotel
  • There was no extensive sickness amongst others in the same accommodation – see Wood v TUI Travel [2017] EWCA Civ 11 mentioned below
  • The claim comes from or involves people generating claims in the resort
  • The client’s contemporaneous report of the holiday was positive
  • The client drank or ate excessively”

HOLIDAY CLAIMS – IT IS ALL ABOUT THE FACTS

The guide provides a reminder that the case of  Wood v TUI Travel [2017] EWCA Civ 11 whilst favourable to claimants in relation to some issues, did provide a clear warning that a claimant has to prove their case and can have several evidential hurdles to mount.

  1. Proving that an episode of this sort was caused by food which was unfit is far from easy. It would not be enough to invite a court to draw an inference from the fact that someone was sick. Contamination must be proved; and it might be difficult to prove that food (or drink) was not of satisfactory quality in this sense in the absence of evidence of others who had consumed the food being similarly afflicted. Additionally, other potential causes of the illness would have to be considered such as a vomiting virus.”
“…it will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink which was not of a satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.”

SOCIAL MEDIA

One way for a defendant to critically examine whether the claimant was indeed ill and had a poor holiday is to look at social media accounts.  Photographs on Facebook, Twitter and other social media sites can often belie an allegation that a claimant was ill. This should be one of the first things a claimant lawyer asks about, and advises the client to preserve.  There are truly remarkable comments that the SRA has come across of advice being given  to clients to delete evidence.

THE GUIDANCE ON EVIDENCE

“Solicitors must engage with this and properly assess all of the evidence before submitting claims.
We have also seen failures to ensure that all documentary evidence is collated and analysed. We have seen highly improper advice to clients to delete evidence.
In all litigation, firms must immediately inform clients of their duty to preserve evidence and require it all to be provided for the firm to review. This is a critical duty to the administration of justice, including to prevent or reduce the public cost of unmeritorious claims. Firms must of course also be rigorous in storing, retrieving, analysing and acting upon evidence they hold, including disclosure where appropriate. Claims should not be submitted until the client has been properly advised on all relevant evidence and on the merits of their case – and when the client has given clear instructions and authority, on a fully informed basis, that the case should be pursued.
A narrow approach to this by the firm is liable to be treated as ‘turning a blind eye’ which of course can lead to dishonesty findings. In Barlow Clowes v Eurotrust [2005] UKPC 37 it was noted that a dishonest state of mind “may consist in suspicion combined with a conscious decision not to make inquiries which might result in knowledge”.
These principles apply to all litigation. The impact of unmeritorious claims on the administration of justice and indeed on those who are subjected to such claims means that solicitors must not pursue them or continue with them where there is evidence that they are false or clearly unmeritorious.
If there are allegations or concerns about a case, law firms must not turn a blind eye, but instead must engage with them and objectively assess whether the case can properly be pursued.
An example of this might be allegations that claims are being generated or co-ordinated by organised criminals, as we have seen in ‘cash for crash’ cases. Law firms cannot simply ignore such allegations and nor can they simply assert that they consider them unproved or unfounded. They must engage properly with them and bear in mind their duty to the administration of justice.”