Briggs –v- First Choice: High Court reverses decision on ABTA Mediation

Another claim relating to Holiday Sickness has recently been decided in the High Court, after being successfully appealed by the Claimants.


The case of Briggs (and 598 others) v First Choice Holidays & Flights Ltd was heard back in October 2016. This was a group action resulting from illnesses sustained by the various claimants whilst on holiday.
The costs claimed were a shade under £2,000,000.00, and following additional liabilities increased the claim to approximately £4,500,000.00. This represented a claim of roughly £3,000.00 per Claimant.


The combined damages recovered were £1,700,000.00 to be divided between the Claimants based on the severity and length of symptoms.


It was the case of the Defendant that 152 of the Claimants had not acted reasonably as they had not sought to take advantage of the ABTA’s mediation scheme.


According to the ABTA, the Arbitration scheme can be used to settle alleged breaches of contract and/or negligence between consumers and ABTA Members.


If a potential Claimant’s claim includes an element of minor illness or personal injury then this can also be considered by the arbitrator, but is limited to £1,500 per person. ABTA’s Arbitration Scheme allows consumers to resolve disputes without going to court; it is speedier, less formal and costs less than instructing solicitors. Arbitration is conducted privately based on written documentation and evidence.


It was the Defendant’s case that the 152 Claimants’ cases could have been resolved at an expense of £40,000.00 rather than the £456,000.00 base costs that were claimed by their Solicitors.


In the initial decision, Costs Judge Jennifer James decided that it was neither “reasonable nor proportionate” to incur these costs by taking part in group litigation, and that they should have been dealt with separately, using the ABTA scheme.


It was held that the maximum the Defendant should pay in relation to each of the claims was the maximum ABTA fee of £108.00, as the value of each claim was not higher than £2,999.00, adding that this finding “did not infringe the sanctity of the agreed costs order.”

Fees

Total of claim

Fee

£1.00 – £2,999.99

£108.00

£3,000 – £7,499.99

£180.00

£7,500 – £25,000

£264.00


The matter was then subject to an appeal that was heard in the High Court by Mr. Justice Singh who sat with Master Gordon-Saker.


The High Court overturned the decision of Costs Judge James, making the ruling that the Costs Judge was not entitled, with reference to Lahey –v- Pirelle (2007) 1 WLR 998, to go behind the costs order that had been made in the substantive action.


Although the utilization of ADR was a factor to consider, and acknowledging that this was open to the Claimants, it was decided that the mere availability of ABTA’s scheme was not sufficient grounds to deny the successful party their costs, especially in light of the existence of a Costs Order.


Written by Simon Sharpe - Costs Draftsman

 

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