In this article Nick Parkinson explores the latest skirmish in the ongoing disclosure wars between package organisers and Claimant law firms. On this occasion, Travlaw successfully defended an application for pre-action disclosure in Janet Openshaw –v- Great Rail Journeys (Worcester County Court, 30th October 2024).
Background
The extent of disclosure that must be given to Claimants has been a thorn in the side of the travel industry for many years! This is because most package organisers do not own or control hotels; rather they contract with third party suppliers to source accommodation. Behind the scenes reveals an even more complex ecosystem where many package organisers actually contract with a bedbank which, in turn, has a contract and direct line of communication with the hotel.
More Than ‘Possession’
A common trap organisers often fall into is to say, “We don’t have those documents so you can’t have them”. Typically, this will arise in the context of a claim for personal injury or gastric illness where the Claimant requests disclosure – often in the form of a list longer than the queue for assistance at the Brianair helpdesk.
The problem here is that, as Claimants will rightly point out, disclosure obligations go beyond possession. The obligation extends to any documents that organisers have ‘control’ of. This is exactly what the lawyers for Openshaw argued!
What does Control Mean?
Here we arrive at the million dollar question! According to the Civil Procedure Rules ‘control’ includes documents in respect of which a party has (or has had) a right to possession, to inspect or take copies. Further, the High Court decision in Berkeley v Lancer (2021) says:
“An arrangement or understanding which gives a party practical or de facto control of a third party’s documents is sufficient to constitute control for disclosure purposes
One of the factors to be taken into account for that purpose:
“There must be an arrangement or understanding that the holder of the documents will search for relevant documents or make documents available to be searched”
This presents a potential problem for those package organisers because…
The Supplier Contract vs Reality
There is often (but not always) a clause drafted into supplier contracts which places an obligation on accommodation suppliers to ‘provide reasonable assistance’ to assist defending consumer claims. There may even be a detailed ‘Claims Handling Agreement’ specifying the level of co-operation expected in fine detail. In these cases, Claimant firms will insist that the package organiser has ‘control’ over documents held by the hotel.
The reality, however, is that:
- In some cases, organisers will not know what (if any) relevant documents the hotel is holding.
- The hotel is owned by a third party operator and is situated in a faraway land.
- The organiser can ‘ask’ but there is no guarantee that they will ‘get’
So what happens if the hotel (or their insurers) fail or refuse to co-operate? Can a court order a package organiser to provide disclosure in any event on the basis that ‘they have a contractual right to these documents’ and therefore ‘control’ of them? Personally, I am not convinced. Ultimately, a contractual obligation is ‘just a piece of paper’. It is not a ‘magic wand’ that makes documents appear at the flick of the wrist.
So What Happened in Openshaw?
In Openshaw, the Claimant was (and perhaps still is) pursuing a claim for personal injury. The Defendant, Great Rail, obtained various documents from the hotel and duly provided them to the Claimant. Great Rail made it clear to the Claimant’s lawyers that:
- They did not have any more relevant documents in their possession,
- They had passed on the Claimant’s disclosure requests to the hotel/their insurers, but
- They had not received a response
Despite the above, the Claimant applied to court for an order that Great Rail provide further pre-action disclosure. The Claimant accepted that Great Rail did not have possession of the documents but insisted that, because Great Rail are liable for their suppliers under the Package Travel Regulations, they must have ‘control’ of the documents. An ambitious argument and, if correct, one that would have far reaching implications for the travel industry!
The Outcome?
Common sense prevails! District Judge Khan concluded that the documents requested by the Claimant were not in the Defendant’s control on the basis that the Defendant had ‘already done everything it could to try and provide the documentation’ and, as such, ‘it was unreasonable to make the order requested by the Claimant’. Dare I say it, we have ‘taken back control’!
The Future of Disclosure Wars?
This is certainly not the last chapter in the ongoing disclosure war between Claimant firms and package organisers. The decision in Openshaw is not binding on other courts and, in any case, these decisions are ‘fact sensitive’, which will inevitably lead to different outcomes.
No doubt the Judge was persuaded in this case by the witness evidence and documents before the court to demonstrate that Great Rail had indeed ‘done everything it could’. The best advice, therefore, is to make sure you are well prepared for any court hearings for pre-action disclosure. Better yet, to engage with the Claimant pre-action to try to avoid court applications being made to start with!
Need Help?
If you are being pressed for disclosure, being threatened with court applications or simply want to discuss this issues raised in this article – feel free to get in touch with the author of this article at nick@travlaw.co.uk.
This article was originally published on: 4 December 2024
