Fraudulent holiday sickness claims have been a significant problem for the travel industry in recent years. However, the industry tackled abuses by adopting a robust approach to evidence and focusing its investigative efforts on early identification of groundless claims. The introduction of a formal Pre-Action Protocol just before the 2018 summer season also helped in addressing claims numbers and behaviours.
What is the impact of the recent High Court decision in Griffith v TUI on such issues? Stuart Smith of our fraud team reviews the decision in this blog, acknowledging that it may have an impact on the defence of sickness claims generally but arguing that the case may have a less significant impact on the defence of suspected fraudulent claims than might first have been thought.
Although the judgment in Griffiths – on appeal from the county court – may appear to be a set-back, it relates to what was termed a ‘qualitative’ case where the expert evidence was “uncontroverted” – ie undisputed – and so the impact on fraud cases specifically may be limited. The case was ‘qualitative’ in that causation was based on expert evidence that considered all the facts, including a positive stool sample, as opposed to a ‘quantitative’ basis where the source of illness would be established by cogent evidence that numerous others at the same resort/hotel had been similarly affected and with alternative explanations having been excluded.
Paragraph 10 of the judgment states that the export report on causation in this case was, unusually, “uncontroverted”, in the sense that the defendant did not call any evidence to challenge or undermine the factual basis for it. That might, for example, have been done by:
- putting in documentary evidence
- undermining the factual basis for the report through cross-examination of the claimant and his wife, or
- by cross-examination of the expert.
Accordingly, while there may be potential for the decision to extend to cases with other facts (see below), based on this particular case it looks less likely to have an impact upon claims with fraud concerns precisely because in Griffiths there was clear evidence the claimant had been ill, a factor missing in many (but not all) fraudulent claims. Further, in those cases with a fraud concern there is likely to be other evidence which may cast doubt on the opinion of the expert whereas there was nothing of that type in Griffiths.
Concern of course remains as to whether some claimants might seek to apply the reasoning in Griffiths to other case types. For instance it could be possible to apply the same argument to cases where the expert opinion is based not upon a positive objective sample but rather upon the nature and timing of symptoms reported solely and subjectively by the claimant; this being a feature more closely associated with fraudulent claims.
Although this could certainly present a bigger problem, it would however seem unlikely that a claimant could rely upon a truly “uncontroverted” expert report because in such circumstances the defendant would usually seek to respond to the claimant’s otherwise uncorroborated evidence by seeking factual and/or expert evidence of its own.
Nonetheless, gastric illness claims will continue to be defensible, providing that defendants continue to deploy the same meticulous approach to evidence-gathering as always. Assuming the decision is not appealed – an order was made extending the period for applying for permission from the Court of Appeal to 21 September – defendants ought to revisit their handling approaches. The strategies for dealing effectively deal with the challenges presented by this case will include, where possible and appropriate:
- challenging expert reports on causation and specifying the basis for doing so
- calling witness evidence of fact if that credibly goes to the basis upon which the report is written
- submitting competing factual evidence to the court
- obtaining evidence of eating elsewhere (eg on excursions) and/or other potential causes of illness
- seeking appropriate disclosure of holiday documents
- instructing their own expert to report on causation
- considering, in rare cases such as Griffiths where the evidence is truly uncontroverted, either submitting Part 35 questions which materially cast doubt upon the conclusions in the otherwise uncontroverted report or compelling the claimant to call the expert for the purposes of cross-examination.
The real issue in Griffiths (the judgment is available here) was putting the claimant to proof and there is no suggestion – neither in the decision nor here – that the claim was other than genuine. To the extent that the decision may have relevance to handling holiday claims where fraud is a concern, defendants need to be alive to the forensic issues raised and adapt their approach accordingly.