Brexit - A travel claims lawyer's perspective

Posted by Daniel Scognamiglio on

Who are BL Claims Solicitors

BL Claims Solicitors specialise in personal injury, clinical negligence and travel claims, providing our clients with hands-on support, nationally.

We are rated as one of the top firms in the UK and believe in speaking to our clients in jargon-free language and ensuring you're speaking to a highly qualified lawyer right from the outset

Whilst the UK has voted to leave the EU, it is not clear as to what that exit will look like or as to how we will construe the laws that we have adopted over the last 40 years. What is clear is that until there are positive steps changing the law, those aspects of European Law that have become implemented within the laws of the UK will remain - the Package Travel Directive would be an example of this. The effect on laws such as Air Passenger Protection Regulations that had not required implementation within the UK, are less clear.

The EU is the main holiday destination for UK tourists and there will be implications for free movement of goods, services, people and investments. Whether holidays or the cost of travel increases or we have less travel to or from Europe remains to be seen. How this is going to affect the EU-US Open Skies or other international agreements is also unclear, but presumably, we will need to negotiate similar bilateral agreements.

So what happens if you have an accident on holiday in Europe? The manner in which claims are handled following an accident within the European Union has fundamentally changed in recent years as a result of European Law. It is now possible for a British claimant injured in Europe to bring a claim for those injuries when they return to the UK. This can be following a road traffic accident or an accident in a hotel in which the claimant has suffered personal injury or loss.

Following an accident in a hotel where a claimant was staying there as part of a package holiday, a claim can again be brought upon the holidaymaker's return home. The claim is brought against the tour operator thanks to the Package Travel Directive having been adopted into law by the UK parliament. Damages in this instance would be at the English level of damages.

A significant problem has come about due to holidays being booked dynamically. The current European (and therefore English) law does not give someone who has bought their flights and accommodation separately the same protection as if a package holiday had been bought with flights and accommodation at an inclusive price. Europe has however identified this issue and has come up with a solution. The Package Travel Directive 2015, aims to give 120million customers protection where they picked their own combination of flights and accommodation.  That was to be implemented by 1 January 2018. Presumably the UK parliament can still implement European laws such as this Directive if they choose to, but there will be no obligation on them. This will mean that we may be stuck with the old law that is becoming increasingly out of date. It will also mean different regulatory requirements around Europe.

Airline customers could see their rights significantly altered. Following a flight delay airlines are often frustrated at having to pay out significant sums of money thanks to the Denied Boarding Regulations. They may no longer be part of UK Law.

Motor Insurance

The ability to bring a claim against a motor insurer following a road traffic accident in Europe is reasonably straight forward as we are able to sue the insurer as a result of the European Judgements Regulation (44/2001) as interpreted by the European Court. Damages are still assessed in accordance with the location of the accident except in some very limited circumstances. This can cause some serious problems largely with differing levels of damages around Europe  and an uncertainty caused by fluctuations in the exchange rate where damages are assessed in Euros. However the claim can be brought when the holidaymaker returns back home, thanks to European law.

If the motor car was not insured or cannot be traced, again compensation is payable when the holidaymaker returns home. And again this is as a result of European law.

Before I leave the subject of motor insurance, it is worth noting that we have compulsory motor insurance in the UK due to European Law. The extent and protection provided by that insurance has been led by the European Motor Directives as written into UK Law. It is of course entirely possible that a UK parliament could have adopted these laws themselves without needing Europe.

Medical Treatment Abroad

British holidaymakers and expats who have moved to Europe receive healthcare equivalent to a local national. So a British pensioner who has retired to Spain can enjoy the same healthcare as a Spanish national, thanks to the European Health Insurance Card (EHIC). Whether we are able to retain this benefit will be subject to negotiation. If we do not have that benefit travel insurance policies that provide medical benefits will increase in price. It also makes it even more important that travellers to the European Union buy good quality travel insurance.

Interpretation

Our Courts are presently obliged to determine cases in accordance with European Law and the judgements of the Court of Justice of the European Union. Just about every travel claim involves aspects of EU law. Each precedent referred to in Court will need to be examined to see whether it involves an aspect of European Law. There is going to be a huge amount of uncertainty which will inevitably create a great deal of litigation.

Where a claim cannot be brought in the Courts in England, it can still be brought in the location of the accident or where the Defendant resides. That was how we handled most cross-border claims many years ago.

However for holidaymakers that is very often in a jurisdiction where the judicial system may not be as amenable to claims as the British system. It can often mean that the claim is not economic to pursue with any award not covering the cost of bringing the claim. It is therefore more important that they purchase legal expenses insurance.

Legal expenses

Finally, but by no means least, Legal Expenses Insurers are often able to recoup the expenses that they pay out during a claim brought in England. The recovery of costs is rarely an option in Europe. If more claims would need to be brought outside England or Wales, the cost of legal expenses insurance may well increase.

Conclusion

We have a couple of years to negotiate an exit from the European Union from the start of negotiation. Whether as part of that negotiation parliament decides to retain any or all aspects of European Law will have a far reaching impact on the manner in which cross-border claims are handled. There is a lot of uncertainty ahead and the legal implications for the travel industry, consumers, insurers and claimants are far from clear.

BL Claims Solicitors are here to help

If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at info@blclaims.co.uk

About the Author

Daniel leads our travel team. He is a specialist in multi-jurisdictional disputes, travel insurance litigation and tour operator liability and is qualified as a solicitor in England and Attorney at Law (non-practising) New York.

Daniel Scognamiglio
Email Daniel
023 8085 7339

View Profile