Post Brexit Holiday Claims

13 Jul 2016 | Comment

New Prime Minister Theresa May takes her seat in office today. Despite many hoping that her pro Europe stance would mean an end to Brexit, May is adamant that our divorce from the European Union will go ahead, announcing that ‘Brexit means Brexit’.

So how will the rights of the thousands of Brits injured on holiday in the EU and abroad be affected?

Nothing will change immediately and perhaps there will be no change at all to the existing laws governing an accident abroad. The reason for this is that, as a member of the European Union, the UK was required to implement EU directives into our national law.

When the UK leave the EU, EU law (directives and regulations) will cease to apply to the UK. However, the national law that implemented those EU laws will remain in force unless amended or repealed by Parliament. It will therefore be for the post-Brexit Government to decide what, if any changes should be made.

Under the current law, a person who purchases a package holiday and sustains a personal injury whilst on holiday may be entitled to sue the tour operator that sold them the holiday and look to recover compensation. This effectively means that a claim can be brought in the UK for an accident that occurs anywhere in the world. The injured holiday maker can instruct solicitors in the UK who will pursue the UK based tour operator through the UK courts and recover compensation based on UK law for personal injury. The Package Tour Regulations apply to a holiday taken within the UK just as much as they do to a holiday taken abroad.

Our laws that govern package holidays derive from an EU directive. The vote for Britain to exit the EU “Brexit” will allow the Government of the day the opportunity to amend any and all UK legislation that was put in place to implement European law. The Package Tour Regulations may remain unchanged. However, if the decision is taken to remove (repeal) the Package Tour Regulations, holiday makers will be left unable to pursue a claim against their tour operator under the regulations. The impact of this is that a Brit abroad who sustains an injury may need to instruct a lawyer in the country in which their accident took place. The claim would then be brought in the foreign country’s courts with an assessment of compensation based on the foreign country’s laws. The injured party may also be required to travel back to the country to attend medical appointments or court hearings. This would be a significant blow to consumer protection in the UK.

In the event that a personal injury claim needs to be brought in a foreign country, the funding of that claim will also be subject to the foreign jurisdiction. This may mean the injured party is required to pay the legal costs of their claim in advance of work being carried out and irrespective of whether the claim is successful or not. The high level of fees in pursuing a foreign action may prohibit injured holiday makers from bringing a legitimate claim for compensation and may lead to a restriction in access to justice.

However, determining the correct jurisdiction concerning an accident abroad is a complex matter and will come down to the individual circumstances of each case. Advice should be sought based on the specific facts of each case.

Another avenue that may be open to an injured holiday maker seeking to bring a claim is against their credit card company under the section 75 of the Consumer Credit Act 1987. This would again allow the injured party to bring their claim in the UK provided the total cost of the holiday was between £100 and £30,000 and at least part of the holiday was paid for on a credit card (such as a deposit). In this way, using a credit card could be seen as another layer of insurance. This protection would remain in place following Brexit.

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