It may come as no surprise to learn of a rapid expansion in holiday sickness claims. According to The Association of British Travel Agents there has been a 500% increase in compensation claims for holiday sickness by Britons since 2013, dwarfing those made by continental visitors to the same hotels.
The Solicitors Regulation Authority has issued a warning notice to all those acting in personal injury cases, particularly holiday sickness claims. It was updated on 9 August 2018.
Currently, the SRA is investigating more than a dozen firms in connection with holiday claims and has updated its advice to better prepare solicitors dealing with this area of legal services. Behaviour giving cause for concern includes firms:
- Acting where they had no skill in the area
- Failing to ensure that they do not accept cases from introducers who are cold calling or failing to verify the source of the referral
- Entering into improper referral arrrangements and allowing their independence to be compromised by, for example favouring the interests of the referrer
- Failing to properly identify clients and confirm client instructions including the verification of relevant documentation to support a claim
- Bringing a claim without first investigating whether it is valid
- Making unreasonable requests for disclosure from the defendant or their lawyers
- Failing to objectively assess and investigate adverse evidence
- Failing to properly advise clients about what will be expected of them when making a claim
- Submitting false or dubious claims in the hope of a settlement without further investigation by the defendant
- Seeking unreasonable costs – either from the client or the defendant
Firms who conduct cases which demonstrate one or more of the above features may face regulatory action for breach of the SRA’s Principles.
The SRA is clear in its 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.
The extent to which law firms should verify their clients’ cases is risk specific and examples of risk factors in holiday sickness claims 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
- 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
Solicitors must properly assess all of the evidence before submitting claims.
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 unmeritiorious 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. A dishonest state of mind may consist in suspicion combined with a conscious decision not to make inquiries which might result in knowledge.
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.
Where the SRA considers that a solicitor has turned a blind eye to unmeritorious claims or to malpractice by introducers which could have led to false claims, there is a serious risk that the SRA will pursue allegations of dishonesty and lack of integrity against the solicitor.
If the SRA proves an allegation of dishonesty against a solicitor in SDT proceedings, the solicitor is nearly always struck off Failure to have proper regard to the warning notice therefore is likely to lead to disciplinary action.
Julie Vallance is legal director at Lime Solicitors