Holiday Compensation Claims
Holiday Claims
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Law Industry Procedure Terms Jargon Buster

At Simpson Millar LLP, our holiday lawyers are careful to avoid using legal jargon where possible and we pride ourselves on providing straight talking legal advice. When making a claim for an accident or for an illness suffered abroad it is virtually impossible to avoid the use of legal terminology altogether. This page aims to shed some light on the terminology that you are most likely to encounter when pursuing a holiday illness or accident compensation claim.

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ATE (After the Event) Insurance

Where LEI is not available or where it is inappropriate to use LEI, a policy of ATE Insurance is generally recommended. This is to protect you from being exposed to paying the other side’s legal costs if the claim fails. Different policies are available. Typically, you only have to pay for the insurance if you win. More details about funding can be found here.

BTE (Before the Event) Insurance and LEI (Legal Expenses Insurance)

Most people will have some form of BTE insurance in place before travelling abroad (such as travel or home insurance). These policies may have LEI attached to them than will cover the cost of bringing a claim, negating the need for additional After The Event (ATE) insurance. However, there are typically exclusions attached to the policies and these vary from policy to policy. These may exclude the use of the LEI cover or make the cover inappropriate.

Care and Assistance

If you have had an accident or illness while on holiday and needed someone to look after you, you may be entitled to claim back compensation for care and assistance regardless of whether or not you have paid your carer.

Civil Procedure Rules (CPR)

This is the formal name for a “no win no fee” agreement. More information about this can be found here

Conditional Fee Agreement

These are a set of rules that lawyers must abide by. They set out the processes that must be followed when pursuing a claim and deal with matters such as expert evidence and the making of formal settlement offers.

Court Directions

Once court proceedings are issued, the court will provide the parties with directions that must be followed. The courts will typically require the parties to exchange evidence and witness statements and to file case summaries – culminating in a trial which will generally be listed to take place many weeks after court proceedings have been commenced.

Court Proceedings

When making a claim of injury or illness, the parties are encouraged to settle matters without the intervention of the court. If the parties cannot resolve matters between themselves, then the next step will be to issue court proceedings, this effectively starts the courts involvement in matters and the courts will subsequently look to manage the claim from this point.

Defence to Claim

When court papers are issued and served on the other side, the other side has 14 days to acknowledge the papers and an additional 14 days to file a defence. This will be in the form of a document that sets out why the Defendant should not be liable.

Disclosure

Throughout the claim process, each party will be required to disclose documents that are relevant to the claim to the other party.

Fast Track

Compensation claims for injury or illness that are likely to be worth between £1,000 and £25,000 for pain and suffering will fall within the fast track. Solicitors can often act on a no win no fee' basis when a claim falls within this value as provisions are made for the recovery of legal costs.

Final Hearing

A claim can settle at any point leading up to a trial. Where a matter cannot be resolved, the parties will have to attend a final hearing where a judge will hear all of the arguments and make a ruling as to whether the other side is liable and if so, what level of compensation should be awarded. Where the issues are complicated, a trial can be split or may proceed over a number of days. Most Fast Track cases (see above) are however generally concluded within one day.

Future Loss

Future losses are very difficult to assess - the best the courts can do is to make an estimate of those future losses.

Loss of Earnings

If you are unable to work following your Holiday Accident or Holiday Illness, you can claim back loss of earnings from your tour operator – although they must be at fault for your injury.

Loss of Holiday Enjoyment

When something has gone wrong with your holiday and your travel agent or tour operator is at fault, such as the swimming pool or hotel restaurant being substandard or building work happening at the hotel which you had not been made aware of. The reason you can claim compensation for loss of holiday enjoyment is because when you book a holiday, the tour operator is bound to provide you with an enjoyable experience.

Loss of Holiday Experience

Sometimes referred to as "loss of value" or "diminution in value" from the holiday, the amount you can claim for loss of holiday experience depends on the cost of your holiday and the severity of the problem. Claimants generally claim back a proportion of the holiday cost back based on the extent that your holiday was ruined.

Loss of Personal Expenses

Personal expenses include any additional costs that you have incurred as a result of the tour operators negligence. Examples of loss of personal expenses include telephone calls associated with resolving your problems and additional accommodation costs if you have needed to extend your stay, including airport parking, transport costs associated with getting to and from the airport. You may also be able to claim back more unusual costs such as kennel charges and child minding costs.

Medical Evidence

In order to support a claim for injury or illness it will be necessary, in the vast majority of cases, for medical evidence to be obtained from an expert in the relevant field. As the Claimant, this is typically arranged and organised by your solicitor, although in some cases, particularly those that fall within the multi-track, the Defendant may seek permission to obtain a report from its own expert.

Multi-Track

If the value of a claim is likely to be in excess of £25,000 then it is usual for the case to be allocated to the multi-track. The procedures that have to be followed for multi-track cases differ from those in that apply to the fast track. Again,no win no fee' funding will generally be available for multi-track claims.

No Win No Fee

A no win no fee agreement is an arrangement that you will make with your solicitor whereby you only have to pay legal costs if your compensation claim is successful.

Overriding Objective

This sets out the principal that cases should be pursued justly and at proportionate cost, saving expense and having regard to the amount of money involved. All parties must be aware of this and the Court must actively manage cases to further this objective.

Pain and Suffering

pain and suffering are usually considered together when assessing compensation.

"Pain" is defined as the physical hurt or discomfort attributable to an injury or the consequential effect of the injury.

"Suffering" can be defined as mental or emotional distress - for example, anxiety, worry and embarrassment.

Part 36 Offers

These are offers that can be made by either side in order to encourage the settlement of a claim. There are a number of technical consequences that may follow when an offer of this kind is made. Essentially however, a party may be penalised if a reasonable offer is not accepted.

Personal Injury Pre-Action Protocol

This is a set of rules/guidelines that dictate how personal injury claims should be handled prior to the issuing of formal court papers. They are designed to encourage the parties to comply with the overriding objective (see below) and set out the time frames that should be followed. Generally speaking, where a claim involves a foreign element, the other side will seek to rely on a provision contained within this protocol allowing it 42 days to acknowledge the letter of claim and an additional 6 months to investigate claim.

Post-Traumatic Stress Disorder (PTSD)

Defined by NHS Choices as "an anxiety disorder caused by very stressful, frightening or distressing events."

Small Claims/Small Claims Track

Cases that do not concern injury or illness and are valued below £10,000 will typically be dealt with within "the small claims track" of the court. Personal injury cases where compensation for pain and suffering is valued at less than £1000 will also be dealt with here. The use of legal representatives for matters of this kind is not encouraged by the courts and there are no provisions allowing lawyer to recover their costs in a small claims matter.

Special Damage

This the name given to compensation that can potentially be recovered in respect of consequential losses and expenses that are incurred as a result of an accident or illness and may include loss of earnings, damaged clothing and travel expenses. More information about the kinds of compensation that can be claimed can be found here. These losses will have to be listed in a schedule and disclosed to the other side.

Trial

A claim can settle at any point leading up to a trial. Where a matter cannot be resolved, the parties will have to attend a final hearing where a judge will hear all of the arguments and make a ruling as to whether the other side is liable and if so, what level of compensation should be awarded. Where the issues are complicated, a trial can be split or may proceed over a number of days. Most Fast Track cases (see above) are however generally concluded within one day.

Get in touch for a chat about how we can help you by filling in our quick, no obligation enquiry form and we will call you back or you can call us directly on 0808 145 1353.

Author: © 2014

Dated: 25/03/2014

Paul Stevens - Group Travel Litigation Claims Manager