Managing ILLNESS CLAIMS: Towards a lawful practice

Since there was an exponential growth in complaints for gastric diseases from British customers to Spanish hotel establishments, the British and Spanish authorities, together with the main associations representing travel agents and the hotel sector -such as ABTA and CEHAT-, have worked intensively to address the conflict, minimize its short-term consequences and direct their management in accordance with appropriate commercial and legal parameters. The rise of this type of complaints has come supported, among others, by the absence of specific regulations that would regulate the costs associated with legal representatives involved in the process and practices Fraudulent Of the companies called claim farmers, responsible for contacting clients who are likely to complain and refer them to law firms, and of the legal professionals themselves. Some firms have filed claims against British tour operators without correctly identifying the clients or the relevant documentation to provide to support the claim, have processed some without any factual basis or managed compensation agreements without the client's proper authorization. Most of these files are dated between 2013 and 2016, many of which have already been successfully notified and managed. However, from our office, we are currently dealing with hotel establishments that are belatedly notified of claims that are still to be processed or in which the tour operator has already compensated the client and has made a unilateral discount to the hotel for the same amount. As for the practice of British lawyers, last August, the Legal Regulatory Authority in the United Kingdom —Solicitors Regulation Authority- He updated his deontological rules with regard to the treatment of claims for personal injury, especially those derived from the contracting of tourist packages (Holiday Sickness Claims). It establishes, among others, the need for professionals to present a service with an adequate standard of customer service, practicing the profession competently and diligently, executing their tasks with integrity, in accordance with the best interest of each client and in good faith and providing a service in accordance with the law. Failure to comply with the observations established by the Authority may result in the imposition of disciplinary measures. Likewise, in order to put an end to the situation described, in the month of April the amendment to Section 45 (Part 45) of British civil procedure -Civil Procedure Rules- which regulates the amounts that, unless the court orders otherwise, will be allowed with respect to the positions of legal representatives. Contrary to what has happened so far, the fees of attorneys involved in personal injury claims arising from claims for gastric diseases will be regulated depending on the amount of the claim and the duration of the proceedings. The British legislator is convinced that the fact of not limiting the legal costs of consumer representatives in these types of complaints has encouraged these claims to be resolved extrajudicially. Consequently, it is believed that this situation has facilitated the filing of fraudulent claims due to the low probability of not being admitted by tour operators and hotel establishments. This reform establishes a scale of fixed amounts to be received by legal representatives depending on the amount of the claim (Table 6D) Public Liability Claims; Section 45) .According to the British Association of Travel Agents (ABTA), the average amount of compensation requested in a claim for gastric disease is around £2,100, and the cost of defending and managing such a claim is fixed at 3,800 pounds on average, so the implementation of this measure will result in substantial savings for operators and tourist establishments that must face a claim of this nature while providing security and certainty in terms of planning the extrajudicial defense procedure and Judicial. In addition to the above, the new Protocol for the extrajudicial resolution of claims for gastric diseases within tourist packages (Pre-action protocol for resolution of package travel claims), which will apply to those claims whose Letter of Claim is submitted after the effective date May 2018-. Among other new features, this protocol will only be applicable to claims for personal injury that originate from gastric disease (package travel claim). In order to ensure the concurrence of a minimum evidentiary activity, it is required that in the first written statement of complaint (Letter of Claim) addressed to the tour operator and the hotel establishment to break down and justify the amount being claimed. In addition, the text reflects the need to contribute as soon as possible on the part of the customer when filing the complaint, understandable medical records or reports that prove the possible damage caused. The Protocol also advocates the use of alternative dispute resolution methods -ADR- that allow the dispute generated to be resolved before transferring it to the courts. As Annexes to the Protocol, there are model letters of complaint and response from the hotelier, which match in content and form the model already distributed among CEHAT members and whose drafting our firm collaborated. At Tourism&Law, we believe that all these measures will have a full impact on the practice of British law firms and on claim farmers, On the understanding that the incentives of these agents to file fraudulent claims will be reduced, since the possible fees to be received will be reduced to those established in the applicable regulations and must be provided from the moment the claim is filed, as we have been defending, documentation that legally supports the claim. All this will allow us to defend and protect with guarantees and in a satisfactory manner the rights and interests of Spanish hotel establishments and tour operators against to the increasingly residual phenomenon of fraudulent women Illness claims.

Julia Petit (T&l Attorney)