No one can doubt that the ongoing COVID-19 (C-19) crisis has hit the travel industry hard. The short-term outlook for the industry is also fraught with uncertainty with, for example, France, the Netherlands, Aruba, Turks and Caicos, Malta and Monaco the latest places removed by Scottish Government from the list of destinations exempt from quarantine requirements due to an increased number of cases of coronavirus (link here). Unrelated to C-19, the recent introduction in Scotland of group proceedings could also affect the travel sector in terms of increased exposure to litigation.
Group proceedings – sometimes known as collective redress, multi-party or class actions – came into force in Scotland on 31 July 2020. The commencement may be found here and the relevant court rules produced by the Scottish Civil Justice Council (SCJC) here. The rules adopt an “opt-in” model for Scottish group proceedings which, on introduction, will only be competent at the Court of Session and may proceed only with the permission of a Court of Session Judge on an application by a “representative party”. Under the opt-in model, the court’s decision on the particular collective case will extend only to those individuals who have subscribed to the group proceedings action. A positive outcome for a representative party in a group action will not be able to be relied upon by anyone who did not opt-in. Non-subscribers will not be bound to accept a settlement from the defender and could raise their own claim. The SCJC continues work on related matters including extending group proceedings to public law (judicial review) cases and on the possibility of an “opt-out” regime under which everyone in a relevant class would be affected by the group proceedings unless they elect not to be involved.
Circumstances could arise where more than one holidaymaker claims to have suffered loss, injury or damage because of an alleged breach by a Scottish-based holiday provider of their obligations under the Package Travel, Package Holidays and Package Tours Regulations 1992 or under other relevant statutory provisions or at common law. Particular types of claim which might arise in this context include, for example, incidents of in-resort food poisoning affecting large numbers of customers. If such a group of claims raise issues of fact or law which are the same as – or similar or related to – each other, a representative party of an opted-in group of individuals may be granted permission by a Scottish Judge to proceed with a group action against the holiday provider.
Clearly, the immediate challenge for the travel industry is to navigate its way through and out of the current C-19 crisis. The evolving nature of the Scottish claims landscape is, though, certainly worth bearing in mind and group proceedings are not the only recent development here. Damages-based agreements were enabled as from 27 April 2020 and Qualified One-way Costs Shifting (QOCS) in personal injury claims is scheduled for implementation before the end of 2020. Readers who wish to discuss in more detail the impact of these changes in Scotland in the context of travel and holiday claims should feel free to contact me.
Greg MacDougall, Partner, Solicitor Advocate and Head of Travel and Holiday Claims at BLM in Scotland
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.