The travel law sector can be a minefield of personal injury and road accident claims. But Jon Robins finds how there is much more to the field than compensation claims
Michael Clough was left wheelchair-bound after he fell head-first into a children’s paddling pool while holidaying in Lanzarote, having drunk more than twice the legal drink-drive limit. Judge David Foskett QC dismissed his substantial claim a couple of weeks ago and said it was ‘with regret’ that Mr Clough was not allowed even ‘modest compensation’.
‘His claim wasn’t successful because the judge concluded that even inebriated adults had to look after themselves and it wasn’t necessary for hotels to put up barricades and notices,’ explains Alan Saggerson, a barrister at Number 1 Serjeants Inn in London, who represented the tour operator First Choice in the case.
This High Court ruling is the latest in a series of judgments on such claims and reveals two parallel trends in holiday law. Firstly, the growing number of such claims arising – the court heard that somewhere between 25 and 35 accidents involving dangerous dives happen every year in the UK alone and ‘almost all’ concerned men of around 25 years of age, so-called ‘macho male diving syndrome’. However, in Mr Clough’s case, the judge was not satisfied it had been established he had deliberately dived, saying he probably slipped.
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Mr Saggerson, who is also founder and chairman of the Travel and Tourism Lawyers Association, reckons the case is yet more evidence of what he calls a new ‘judicial realism’ in the courts. ‘Unless the courts identify what has been a real causative breach of contract giving rise to an accident, there is real judicial restraint when it comes to the courts dealing with these claims,’ he says.
The growth of holiday and travel law as a practice area seems inexorably driven by our insatiable desire to holiday more and more in increasingly exotic locations, combined with a mix of unrealistic expectations on the part of travellers and a certain accident proneness when people leave the country.
The travel law sector is not without its own upsets, as has been demonstrated in recent weeks. TUI UK, the UK’s largest tourism group and owner of Thomson Holidays, axed its customer services’ legal department last month (see [2005] Gazette, 27 January, 6). All the group’s pre-litigation claims, estimated at 1,000 a year, will now be handled by Badhams in Croydon while all the litigation will be dealt with by City-based Plexus Law.
This month, the former legal director at the Association of British Travel Agents (ABTA) was in custody after pleading guilty to multiple charges of defrauding the trade body. It was revealed that barrister Riccardo Nardi stole £945,184 during an eight-year period as head of legal at ABTA. He will be sentenced next month.
It is ‘sad news’ for ABTA, reckons Stephen Mason, a partner at the niche Leeds-based travel law firm Stephen Mason Solicitors, which claims to be the only law firm ‘whose sole purpose is a 100% commitment to serving the travel industry’.
‘Obviously for an organisation that is supposed to police fraud in the industry to find a major fraud going on in-house, especially when it is done by the head of legal, is just a public relations disaster,’ he says. ‘But ABTA has such a strong reputation that it will survive.’
His firm represents tour operators and travel companies, including TUI, P&O and easyJet, against all manner of claims – including minor ‘slipping and tripping’ cases to mass group actions, such as food poisoning cases and coach crashes, for example, the accident near Salzburg, Austria, last August which killed five British holidaymakers.
Other significant areas of his firm’s work concern dealing with trading standards prosecutions and advising clients on intellectual property matters. ‘Travel isn’t so much niche work as providing a different kind of advice for niche clients,’ he says.
One of the biggest travel law practices on the claimant side is national firm Irwin Mitchell, which has 48 lawyers in its international travel law group. The team has become increasingly international recently with the arrival of two Spanish lawyers, a German lawyer and an Australian.
The firm is also about to open its first foreign office, appropriately enough in the Spanish holiday resort Marbella. ‘It seems a sensible location bearing in mind the contacts that we already have in Spain plus the fact that there’s a large ex-pat community there,’ says Clive Garner, head of the group.
Does he regard travel law as a discrete practice area or a sub-species of personal injury (PI)? ‘PI cases arising overseas are highly specialist and, therefore, they do warrant specialist lawyers dealing with them,’ he says. ‘In the same way, I wouldn’t feel comfortable handling clinical negligence cases.’
Much of the group’s work is referred on from other lawyers plus ‘a large number of negligence claims where firms have fallen foul of the law’. As he points out, there is plenty to trip up UK lawyers – not least, limitation laws that vary from country to country and can be as short as six months in parts of the US and the Dominican Republic.
Many of their cases are road traffic accidents. Mr Garner reckons that his firm has represented UK holidaymakers in coach crashes in 11 countries over the last few years, including last year’s accident in Austria. The firm recently settled claims worth more than £1 million for 160 claimants who were struck by salmonella and other illness in five different hotels in the Dominican Republican. Mr Garner says the firm is ‘at the forefront of calling for better standards’ for holidaymakers in Europe and spends much of his time lobbying at EU level for reform.
For the larger commercial firms that have sizeable travel law practices, there is less of a focus on litigation. ‘We see ourselves as a one-stop shop to provide all the legal services that people in the travel and leisure industry need to run their businesses,’ says Cynthia Barbor, head of the travel and leisure law unit at US/UK firm Kirkpatrick & Lockhart Nicholson Graham (formerly City practice Nicholson Graham & Jones).
The firm advises some 200 tour operators, as well as trade industry regulators and trade associations, such as ABTA and the Federation of Tour Operators. Increasingly, the firm is involved in regulatory issues. Ms Barbor and her team advised ABTA in its successful appeal two years ago against the decision of the director-general of fair trading to allow the General Insurance Standards Council to implement rules that would have required all ABTA members involved in travel insurance to join the council. It was the first challenge to the Competition Act 1998 and, according to ABTA, the rule change could have cost members £1.1 million.
‘It used to be that you just had to know your contract and tort law,’ recalls Patrick Farrell, a partner in City firm Norton Rose’s 30-strong travel and tourism group. ‘But then there was the Unfair Contract and Terms Act in 1977, and now you have to be up to date with the Package Tour Regulations 1992, consumer protection legislation, ATOL bonding [Air Travel Organiser’s Licensing, which exists to protect the public from losing money or being stranded abroad because of the failure of air travel firms] and the Consumer Credit Act.’
Norton Rose advises tour operators, travel agents and airlines on claims handling, contractual disputes, and brochure terms and conditions. Mr Farrell is currently helping clients digest new EU rules that came into force this month over compensation for being denied boarding, which could give passengers up to £400 if their flight is delayed or cancelled. ‘There is an immediate tension because the minimum levels set down by the EU would be far in excess of the price of the ticket for low-cost airlines,’ he says.
The most recent phenomenon to beset the holiday industry is a growing number of complaints about substandard holidays and minor personal injury claims fuelled by a current obsession in the media with ‘holidays from hell’.
‘On some occasions, consumers are ready to complain about every imaginable difficulty that they’ve had,’ reports Mr Saggerson.
The judiciary is becoming increasingly resistant to such claims. The barrister refers to one notable case where a sceptical district judge packed his trunks and suntan lotion and jetted off to a three-star hotel in Malta to discover for himself whether it was the ‘hell-hole’ that three families insisted it was in their compensation claim. The judge decided that, considering the price, the holidaymakers had received something of a bargain and, in particular, was ‘mystified’ at complaints that the toast was cold, not least since the guests made the toast themselves.
Mr Mason has had to fend off his share of ambitious claims on behalf of his clients, such as the woman on a walking holiday in Spain who suffered an injury when a donkey nuzzled her backpack. ‘She panicked and fell of the mountain path and then sued the tour operator on the grounds that there shouldn’t be donkeys in the wilds of Spain,’ he says. ‘As judges often say, the fact that something has gone wrong on a holiday isn’t enough. There has to be evidence of a beach of contract.’
Jon Robins is a freelance journalist
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