Category: Travlaw News

In this article, Nick Parkinson, discusses a ‘recent’ County Court decision involving Local Standards Susan Auckland -v- Expedia (unreported, DJ Batchelor, Sheffield County Court 11/08/23).  

Previously on “Local Standards”

You may remember me from such articles as ‘When Breaching Local Standards Is Not Enough To Win Your Case’ and ‘Local Standards – Stepping In To The Dark’.  In both cases, injury claims were dismissed because there was no evidence that the accident was caused by a breach of local standards.  These were difficult cases where the package organisers stumbled over the finish line and, here, Expedia were up against similar challenges in the case of Auckland. 

DISCLAIMER:  Yes, I know I should have reported this case a long time ago.  Better late than never!

Background

Ms Auckland slipped in the changing rooms of the spa at the Crowne Plaza Vilamoura hotel in the Algarve, Portugal.  Ms Auckland suffered a fractured hip and brought a claim for personal injury. To succeed, the Claimant was required to prove:

• The local standards
• That the hotel breached those standards; and
• Such breach caused the accident

It was alleged that the hotel had breached the local standards by either:

• Allowing the floor to become wet,
• Failing to install suitable flooring in a ‘wet area’, or
• Failing to put up warning signs or install slip mats by the shower cubicles.

Ms Auckland and her husband alleged that the floor was made of marble (or another shiny, polished and slippery material).  She relied on the expert evidence of a Portuguese lawyer, Cristina Dein, who gave evidence that:

• The floor surface required ‘good adhesion’, and
• There was a need for ‘the hotel to maintain its floors dry’ or ‘duly signed when slippery’

Having a marble floor in the changing room for a Spa sounds like a recipe for disaster right?  How could we possibly defend such a claim?

The Defence

Expedia did not obtain expert evidence, nor did they put P35 Questions to the Claimant’s expert.  However, they did have evidence from Head of Engineering for the hotel group to say that:

• The floor was actually made of a material called ‘travertine’
• Travertine is suitable for wet areas
• A non-slip coating was applied to the floor every year
• A friction test had been carried out on the floor which showed it was above what he believed to be the UK standard

In addition, the hotel Spa manager gave documents to show that:

• The Spa had a protocol to inspect and clean the floor every hour
• Housekeeping had actually followed that protocol on the day of the accident

Armed with the above, we went into this trial quietly confident of getting the claim dismissed…

A Bumpy Start

It is fair to say we received an early curveball when the Judge immediately explained that she was ‘amazed’ that the claim was being defended.  The Judge felt it was obvious that the floor was unsuitable for a Spa changing room and that ‘local standards’ should not prevail over ‘common sense’.  Meanwhile, counsel for the Claimant launched a flurry of preliminary arguments!

First, that the hotel’s witnesses should not be able to give evidence because their statements were not ‘in their own language’.  The Judge gave this short shrift on the basis that the witnesses were fluent in English (as well as Portuguese) and their statements had been taken without an interpreter.

Second, that the statement from the hotel’s engineer should be dismissed because it was ‘expert evidence’ disguised as a witness statement.  The Judge agreed that two paragraphs in the statement were straying into ‘expert evidence’ – i.e. where the engineer talked about the ‘friction test’ complying with UK standards in his statement.  However, she decided to consider this later and ‘probably’ ignore those paragraphs. 

Phew, having survived the first two ‘sniper shots’ from the Claimant, it was time for a counter attack…

Sloppy Expert Evidence

The Claimant’s case relied heavily on an expert report on local standards from a (Portuguese) lawyer.  However, the report did not come with a ‘statement of truth’.  It did not, therefore, comply with the court rules (CPR 35).  The Defendant therefore invited the Judge to dismiss the report entirely.  A technical point, but one that would have been fatal to the Claimant’s case.

The Judge was not impressed.  The point had not been raised previously and there was no reason to doubt the honesty of the expert.  Finally, it was time to start hearing evidence from the witnesses.  Or was it…

A Judge Perplexed

The concept of ‘local standards’ can be a novel experience to Judges and lawyers handling a claim under the Package Travel Regulations for the first time.  The Judge, so convinced that the claim was undefendable, had the Defendant take the Judge through the relevant case law (Lougheed –v- On The Beach).  Still not convinced, but not seeing a white flag from the Defendant’s camp, the Judge eventually waved ‘play on’.

The Trial

Eventually, the witnesses gave evidence.  The Claimant’s evidence was largely expected.  She left the shower in the Spa area.  She slipped.  The floor must have been wet.  The floor felt like marble and ‘looked shiny’ so it cannot have been ‘non-slip’.

The hotel staff stood firm.  The Spa manager maintained that the area was regularly inspected and cleaned.  She also dismissed the need ‘to have floor mats’ near shower areas, being unhygienic and problematic for cleaning.  The head of engineering, meanwhile, maintained that the floor was made of a non-slip material (travertine) and routinely treated with a non-slip coating.

It had been a long day by this point but, finally, it was time for the submissions…

Defendant’s Submissions

It was now the Defendant’s opportunity to explain the relevant case law (Lougheed etc) to the Judge in the context of the evidence that had been presented.  Unfortunately, the Judge was far from convinced that the claim was defendable, interrupting counsel for the Defendant on several occasions.  Finally, however, the Judge appeared to have a ‘light bulb’ moment.  The penny had dropped.  The Judge promised to stop interrupting!

Given the kerfuffle that had ensued throughout the day, however, time had run out.  The Judge did not fancy playing overtime and ordered a second leg.  The parties would have to come back in 7 months.

Judgment Day

And now the moment you have all been waiting for.  Judgment was delivered.  Key parts being:

• I cannot be sure there was a breach of any local standards for the cause
• There was a proper system of maintenance in the spa area in place, and there is evidence it was being adhered to
• I find Mr Da Silva’s evidence (the Head of Engineering at the hotel) helpful. He cannot give expert evidence, but he can assist the court with materials in use at this hotel from an informed perspective. 
• The friction test is, however, discounted as expert evidence and I make no further reference to it
• I do not think the absence of a (warning) sign is causative. The C knew that she would step out and be wet. This is not a Wilson case where it was so dangerous and there is no evidence of previous slips in this hotels
• It is a most unfortunate accident but one that occurred without the intervention of negligence. I find no negligence on the part of the Defendant, or a breach, as to give rise to liability.

Victory!  And it is fair to say one that was ‘snatched from the jaws of defeat’ given the resistance presented by the Claimant’s barrister, and the Judge, throughout the trial.

Key Takeaways

Key Takeaways

There are a number of key takeaways for the travel industry here.  All of which are ‘recurring themes’ in these type of cases:

• Judges are often not familiar with the relevant case law on ‘local standards’. Instructing experienced counsel is, therefore, critical.
• Expert evidence from a lawyer can be limited in how far it can demonstrate the ‘local standards’. A more ‘practical’ expert, such as an engineer or architect, is usually superior.
• In fact, claims can be defended without expert evidence. The Claimant has the legal burden of proof and it is often difficult to prove that an accident was caused due to a breach of local standards.
• Hotel employees can be just as important as ‘experts’ – they have technical knowledge about the hotel’s procedures, maintenance and construction that can assist the court. However, caution is needed when they ‘stray into expert territory’.
• The co-operation of the hotel to provide documents, and employees to give evidence, will considerably improve the prospects of defending the claim

The Auckland case concludes our trilogy box set on Local Standards for now.  But, don’t worry, we have just sold the franchise to Disney so there will be more prequels and spin-offs to follow over the next few months!

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, 30^th 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?

I have spoken many times about my frustrations of the chargeback process. Especially when those chargebacks are erroneously, ignorantly and sometimes fraudulently made against agents; agents who have no legal or contractual liability for the provision of travel services but yet end up on the receiving end of the chargeback process. Time and time again, banks and card providers overlook the facts (and the law!) and simply say ‘computer says yes’, resulting in recovery for the consumer, and a double loss for the agent.

I am a real advocate for the industry fighting back in these types of scenarios and pursuing customers who abuse the chargeback process in this way. This week, we saw one such case.

You don’t have to just ‘let it go’!

Southall Travel are an award winning travel company, selling packages and independent travel services alike. Like many travel companies, depending on how they sell their services, they can act in the capacity of either an Organiser or an Agent, as is made clear in their Terms and Conditions.

In this specific instance, the customer made a flight only booking, for return flights to Karachi. The flights cost a total of £752.64. Being a single travel service, the booking was not a package and Southall made perfectly clear at all stages of the booking process that they were simply acting as agent on behalf of the airline – Turkish Airlines.

The outbound flight went ahead without issue; however the customer’s return flight was cancelled by the airline. The airline failed to provide the customer with any assistance, resulting in the customer having to source additional accommodation, and their own return flights, thus incurring significant cost. Southall Travel, in their role as agent, did all that they could to assist the customer in returning home, but maintained that they were not responsible for any financial loss. This lay with the airline.

Upon returning home, the customer raised a chargeback against Southall Travel and received a refund for both the outgoing and return flight.  The chargeback was upheld even though Southall had acted as agent, had never even received the sum of £752.64 (paid direct to the airline) and the customer had actually travelled on the outgoing flight!

Many agents would simply ‘let this go’. It was a reasonably small sum, and perhaps not worth arguing over. Not Southall Travel!

You can make your case!

Southall Travel commenced a legal claim against the customer in the small claims court, arguing that a) the chargeback should never have been awarded against them in the first place, as they were acting only as agent, and b) in any event, the customer had been unjustly enriched; having availed of the outbound flight on the booking, yet claiming for and receiving a refund for the same.

The customer counterclaimed against Southall Travel, seeking the sum of £2,868.30 to cover the costs of their replacement return flights and accommodation.

The matter was heard before Romford County Court on 2^nd August, where judgment was awarded in favour of Southall Travel. The customer’s counterclaim was dismissed in its entirety and they were instead ordered to reimburse Southall for the cost of the flights that had been previously awarded under the chargeback process.

In their Judgment, DDJ Greenwood stated: “It seems to me clear that the contract between Southall Travel and [the customer] is limited to Southall Travel facilitating a further contract with Turkish Air… I find that there is no basis in law for which [the customers] may obtain compensation for which they seek from Southall Travel. Any contract that would provide for compensation would be between the customer and Turkish Airways.

On behalf of Southall Travel, it was submitted that they have essentially been unjustly enriched. It seems to me that Southall Travel’s position in respect of the law must be correct

Closing Remarks

Cases like this are far too common; and what is just as common is travel companies feeling that they have no source of recourse especially when the cost of doing so may well outweigh the value of the claim being sought. In this case, the claim value was under £800. Southall made numerous attempts to liaise and settle the matter with the customers without the need for formal action, but when this proved impossible, they stood up for what is right and brought the matter before the courts. It is great to see companies such as Southall Travel fighting back and others in the industry should be encouraged to do the same!

Krystene Bousfield