The Solicitors Regulation Authority (SRA) has issued a new warning notice regarding false holiday sickness claims. As summer comes to an end and holiday-makers return home, it is imperative Solicitors are vigilant when it comes to ensuring holiday sickness claims are genuine.
In 2017, the Association of British Travel Agents (ABTA) reported that holiday sickness claims had increased by 500 percent, a vast difference between the number of claims made by European tourists visiting the same hotels during identical periods.
The new warnings come after a spate of cases in which holiday-makers who have made fraudulent claims received prison sentences.
In 2017, Deborah Briton and her partner Paul Roberts were both jailed for 9 and 15 months respectively after they claimed to have fallen ill during holidays in Mallorca in 2015 and 2016. Travel company Thomas Cook brought a private prosecution against the pair after the couple boasted on social media of their holiday of “sun, laughter and fun”.
According to the Guardian, Judge David Aubrey QC said the couple’s claims had been a “complete and utter sham”.
“They were bogus from start to finish, you were both asserting on your behalfs and on behalf of your two children that on two separate holidays you had suffered illness. They were totally and utterly fake,” said Aubrey.
He said: “Those who may be tempted in the future to make a dishonest claim in relation to fake holiday sickness, if they are investigated and brought to justice, whatever the circumstances of an individual, he or she must expect to receive an immediate custodial sentence”.
The Guardian also reported that an epidemic of false holiday sickness claims has resulted in a “ferocious legal fightback from the travel industry”. It stated the vast majority of the claims were brought by claims-management companies who tout for business in holiday hotspots and cold-call tourists once home.
Dozens of law firms are now being investigated regarding holiday claims, some for having potentially improper links with claims management companies, allegedly paying them to refer clients.
Details of the updated warning notice
The updated warning notice states the SRA has reason to be concerned because it has witnessed, among other things law firms:
- taking on matters for which they lack the skills and experience to manage
- not verifying the source of referrals
- allowing their independence to be compromised, for example, favouring the position of the referrer
- failing to investigate whether a claim is valid
- making unreasonable disclosure requests
- not properly assessing evidence
- seeking unreasonable costs
The warning notice states that Solicitors should not continue with any claims where there is serious concerns or doubts about the credibility of the claimant’s evidence. In addition, no claim should be pursued where there is not clear authority from the claimant to do so.
Signs which may indicate a holiday sickness claim is fraudulent include:
- a significant amount of time has elapsed since the incident and the making of the claim
- the hotel has had no prior report of the claim
- no one else reported any illness at the accommodation
- the claim has been generated by a person or company that farms for claims in a resort
- social media evidence indicates the client had a good holiday with no incidents
- the client ate and drank a great deal before becoming sick
A solicitor must inform clients at the beginning of a matter that evidence of the illness needs to be preserved and made available for review. The warning states:
“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”.
It is important to note that ‘turning a blind eye and failing to make proper inquiries can amount to a dishonest state of mind (Barlow Clowes v Eurotrust  UKPC 37).
It is vital that if anyone in the firm has concerns about the genuineness of a claim, they investigate the matter thoroughly and make an objective decision whether to pursue the matter. In addition, if a client is referred to you by a claims company, you should take positive steps to satisfy yourself that the introducer did not undertake in any activity that would be contrary to the Principles of the SRA or its Code of Conduct.
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