Most travellers, whether going abroad on a family holiday or travelling to another country for business, will have taken out travel insurance that includes, among other things, cover for personal injury.
Travel insurance policies also typically include legal expenses coverage which, subject to terms and conditions, covers the costs of pursuing civil claims for compensation following an accident.
One job of the Travel Team at Crawford Legal Services (CLS) is to pursue such claims and recover compensation for the injured person. However, there are several factors that our lawyers must consider when pursuing a personal injury claim in a foreign country.
In the event a policyholder caused an accident and is being pursued for compensation, their travel insurance is likely to include personal accident cover which will assist with the legal costs of defending a claim and of third-party compensation.
The CLS Travel Team acts for travel providers, defending claims brought against them and advising on insurance terms and conditions, and for insurance companies, pursuing subrogated outlay recoveries where there is a foreign jurisdictional element.
In the case of property damage claims which occurred outside of England and Wales or claims where damage has been caused to UK-based property by a foreign vehicle, the Travel Team will pursue the third-party insurer in their country of origin. The team also deals with other areas of foreign jurisdiction claims, such as flight delay and baggage damage claims against airlines.
Assisting with legal expenses claims
In the case of legal expenses claims, the CLS Travel Team will contact third parties directly to initiate the claim and/or make enquiries to establish who their insurer is.
The next step is to identify the applicable law which, in most cases, will be that of the country where the accident happened – which normally differs from the law in England and Wales.
The CLS Travel Team will assist with evidence gathering and establishing liability against the third party.
Once liability has been established, the next challenge is how to value the claim. In England and Wales, following a medical examination of the claimant, lawyers refer to the Judicial College Guidelines to value the injury element of the claim and prepare a Schedule of Loss detailing their client’s special damages. That process, and the rules governing what general and special damages are recoverable, may differ in other countries for example Spain uses the Baremo system and in Greece multiple parties including grandchildren and great grandchildren can pursue a claim for moral damages.
Another important element of the claim is the applicable limitation period and whether and how it can be extended. For example, in France the limitation period is 10 years, whereas in Spain it is only one year, but can be extended.
Establishing which country will have jurisdiction over the claim is key; whether it is the courts of England and Wales or the courts where the accident occurred. For accidents in Europe, following Brexit, there is less clarity around jurisdictional rules. The CLS Travel Team also must consider the litigation process itself, the length of time, the complexities and the associated costs of doing so.
A further complication is determining what happens when proceedings have been issued in England and Wales, against a foreign Defendant, an award has been made by the Judge, but compensation hasn’t been received. The CLS Travel Team will consider enforcement of a claim in another country prior to the issue of proceedings.
Finally, parties involved in a claim will want to determine the recoverability of their costs and disbursements. The CLS Travel Team can advise on whether, following a successful claim in a foreign country, costs can be recovered, whether foreign lawyers’ costs will be included, and what rules may apply limiting the level of costs recoverable.
To learn more about the range of services that CLS Travel Team can provide, please contact Victoria Edwards, Alison Matthew, Yvonne Firth, or Samantha Townsend.
