In October 2013, Sean and Caroline Bondarenko spent a week at the five-star Caldera Palace hotel in Crete. Then they returned home. Three years passed. According to reports, in September 2016, the pair then put in a personal injury claim against the hotel for food poisoning. They had allegedly been so desperately ill that they were asking for £10,000 in damages.
The couple were reported as saying they would never have made their claim if a claims management company hadn’t encouraged them to do so. After all, they had only been ill for one day. And only a bit. If the case had been anything like the vast bulk of gastric illness claims, the hotel wouldn’t have contested it at all: the couple would have got a cheque to cover their next couple of holidays.
But it appears that things didn’t turn out that way. In May, the Caldera Palace opened a countersuit against the Bondarenkos for defamation. It had evidence from hotel cameras, it said, of the pair actively enjoying their holiday. And more of the same from the couple’s Facebook feed. The Caldera Palace is asking for £170,000 in reputational damages. If the suit succeeds, the Bondarenkos stand to forfeit their Darlington house. They are, understandably, worried.
“I was horrified when I saw the court papers, which listed all these negative things we were supposed to have said about the hotel,” Sean Bondarenko told a Sunday newspaper. “We never said any of those things. We are terrified for our future, and petrified we will lose our home.” Their solicitors have denied any wrongdoing.
Unluckily for them, the Bondarenkos have found themselves on the frontline of the gastroenteritis wars. Over the past couple of years, foreign hoteliers have begun to identify a new British disease: malingering. Cehat, the Spanish hotel and apartment trade body, estimates that Brits cost them €100m in food-poisoning claims over the past three years. By contrast, the sums from German and French tourists are negligible. One big tour operator points to statistics from July and August of last year: “There were 750,000 travelling British customers, 800,000 Germans and 375,000 Scandinavians. The Scandinavians lodged 39 claims for holiday illness and the Germans filed 114. The Brits put in just under 4,000.”
The Spanish are heavily dependent on the 15 million Brits who visit the country every year, and are particularly grumpy. The trend has made front-page news in Spain’s highest-circulation paper, El País, and featured on Telecinco, Spain’s equivalent of ITV. El País called it “the food poisoning scam that Brits are using for a free Spanish vacation”, and went on to explain: “It’s the ultimate traveller fantasy: a seaside vacation with an all-inclusive hotel deal, and everything free of charge. As it turns out, many British visitors have made this a reality in recent years, thanks to phoney claims of food poisoning.”
“Up to now, the Spanish have tolerated the drunken Brit who pees all over the street in Ibiza,” says Marie Rogers, a senior partner at the Madrid law firm Rogers & Co. “Because he always pays his bill. But now, they do the exact same thing and then they get their money back at the end. They [the Spanish] are not happy.”
What began in Spain has been spreading – first to Portugal, then to Greece and now as far as Turkey, according to the Foreign Office. “We work for a lot of tour operator insurers,” says Rogers. “They saw this problem coming a long time ago. A lot of insurers pulled out and changed their offerings. The hotels woke up more slowly to it. And the hotel insurers woke up even more slowly.”
How did we arrive at a 50-fold explosion in gastric illness claims since 2014? The answer lies with an older “claims farming” industry – whiplash. With 840,000 whiplash claims in 2015 alone, the UK government has long been determined to tackle abuse. It set out changes in the 2015 autumn statement to bust this £1bn-a-year side-industry, including capping lawyers’ fees and payouts.
Claims management companies – often known as “claims farmers” – stood to lose out. But there remained a loophole: if a personal injury were to take place abroad, the fees cap wouldn’t apply. Which was when the question: “What is a form of personal injury that isn’t whiplash and doesn’t happen in the UK?” began to be asked in earnest.
Of course, the claimant still has to prove their case – but only on the balance of probabilities. Stir into that the physical distance across which evidence and lawyers must compete, and you have a recipe for thousands of easy wins, often administered as class actions by specialist solicitors.
It’s probably not the kind of law the solicitors’ parents had in mind when they attended their graduations. “But then again,” says one tour operator who is fighting several cases, “you should see some of these fine gentlemen – driving some very nice cars around the north-west of England.”
Soon, companies such as market-leader Sickholiday.com were expanding into TV advertising. The company’s site offers an easy explainer on how to claim on a no-win no-fee basis: “If you win your case, the only thing you will have to contribute is 25% of the compensation you are awarded, leaving the tour operator to pay for your solicitor’s entire basic charges and expenses.”
Sickholiday.com is at pains to point out that it only handles legitimate claims. “We turn down around five cases a week because we think they are fraudulent,” says a spokeswoman. “For us to further a case, claimants must be seen by a gastroenterologist.”
It accuses bodies such as the Association of British Tour Agents (Abta) of trying to dissuade legitimate claims: “Abta and its members are trying to hoodwink the public into believing that severe cases of gastroenteritis and the like are either fraudulent, which they are not, or are caused by things other than food poisoning, such as a reaction to foreign food or air conditioning.” Abta replies that it has taken steps to “educate consumers about the potential consequences of a false claim, and advises customers with genuine claims on the process to follow”.
Regardless, the compensation business has become highly competitive. A couple of years ago, claims farmers began approaching tourists directly in the Mediterranean. In Gran Canaria last September, a “claims clinic” van was said to have been spotted in southern Tenerife, advertising their no-win, no-fee services. In June this year, two men were arrested by the Guardia Civil in Mallorca for allegedly encouraging false claims. Passengers returning on charter flights often find claims operatives waiting for them with business cards at the airport, or will perhaps get a helpful phone call when they arrive home. Jet2, which offers all-inclusive package holidays alongside its low-cost airline, obtained undercover footage of the touts in action. Be sure to get a receipt for Calpol or Imodium, say the operatives. That’s all the proof you need, and we’ll contact you again when you return home.
Upstream from the claims companies, the lawyers who fight the claims operate at a cordial distance. Some advertise on the web, but it is illegal in the UK for solicitors to tout for business, so the claims farmers find customers, often prepping them on the best things to say; for instance, that they only became ill three days after the holiday began – enough time for any gastro bug to be solely the hotel’s responsibility. In turn, the claims companies are normally paid a headline “advertising fee” for a large batch of good-quality leads.
A standard claimant gets about £1,500 to £2,000, depending on how many days they have been ill. The lawyer’s fees are uncapped, and can end up being multiples of that.
As the situation has deteriorated, the Foreign Office has started to remind travellers, in its “hazards” section for Spain, Portugal and a few other countries, that “if you make a false or fraudulent claim, you may face legal proceedings in the UK”. It notes that the maximum sentence is three years in jail. “Our message to those who make false holiday sickness claims is clear,” justice secretary David Lidington said earlier this year. “Your actions are damaging and will not be tolerated.”
In the meantime, the tour operators have sought to make examples of claimants. Last month, in a landmark case, Thomas Cook opened a private prosecution for alleged fraud against a Liverpudlian couple who pleaded not guilty to falsely claiming thousands of pounds for two holidays to the same resort in consecutive years.
Earlier in July, Julie Lavelle, 33, and her partner, Michael McIntyre, 34, were told by a judge at Liverpool county court that they would have to pay Thomas Cook £3,700, having lost their case against the holiday firm. The judge was told that McIntyre had been seen on Las Palmas airport cameras sinking six pints of lager despite his claim to be suffering from severe gastroenteritis. On the flight back, he had ticked “good” or “excellent” on his feedback questionnaire, although he claimed in court he’d only done so to be “more likely to benefit from a prize draw incentive” related to the form.
In January, many of the fuzzier legal interpretations were sharpened in the tour operators’ favour. A case known as Wood v TUI clarified the standards of evidence. Now, the judge ruled, claimants must prove “that the food or drink provided was the cause of their troubles”, and that the food was “not satisfactory”.
Opinions differ on whether the phenomenon has peaked. Last month, a firm of Manchester solicitors called Law Room decided to drop 3,500 pending cases after Wood v TUI, which, they said, “changes everything”.
Still, in an increasingly paranoid environment, hotels are starting to put up cameras in dining rooms or asking guests to sign a waiver at checkout, certifying they weren’t sick. They are even employing stooges to pose as tourists, hoping to be accosted by claims farmers. “Jet2 have sent their own detectives down to the key resorts such as Mallorca to try to catch the touts,” says Humphrey Carter, the news editor of the Mallorca Daily Bulletin.
Holiday firms are taking a keen interest in claimants’ social-media feeds. Leon Roberts, a bodybuilder, was reported to have made the claim he had been bedridden on a Thomson holiday to Turkey, for 19 days. However, his Facebook holiday album was said to show 79 counterexamples, including: dining poolside, drinking beers and munching on steak and flatbread.
In several of Thomas Cook’s high-volume hotels, there is now a sign by the check-in desk advising guests to notify staff before they leave of any illness so it can be investigated. “If you look at the claims company instructions,” says a senior holiday rep with one travel company, “one of the points in there is that they should notify their holiday rep. So, often they tell our reps literally as they’re stepping on to the departure bus. Or as they’re at the check-in desk at the airport.”
The rep says this is the first thing commercial managers of Mediterranean hotels want to raise with him when he visits. And as tourism has bunched up towards the western Med after two years of Islamist attacks in Tunisia and elsewhere, hotel owners have more power than ever over who stays and on what terms. Which is why there has been talk of banning Brits from all-inclusive packages – the “all-inclusive” bit is vital as it allows claimants to demonstrate that they couldn’t have been poisoned at a local restaurant.
This has been dismissed by Cehat, which is walking a fine line between cracking down on fraudsters while respecting the vast majority of British holidaymakers who fill their coffers without trouble. There are also many in the industry who feel that talking about the issue is only going to make it worse; that once more tourists hear how much money is involved, they will treat it as an instruction manual.
Between the dishonest claims and the honest ones – which, everyone is at pains to stress, do exist – there is a third category: the merely mistaken. Some in the hotel industry suggest that travellers turn up at their all-inclusive resort, grab six unfamiliar types of food from the buffet, eat three plus-sized meals a day, then forget to drink any water, subsisting on Coke and lager. This, in a 35C heat entirely alien to a British constitution. Although this is not gastroenteritis, it’s no wonder they’re trotting to the bathroom.
“What’s really interesting,” says the senior rep, “is that if you offer to send the customer for free medical treatment and then offer to pay for the stool sample test, which you need to prove conclusively it was gastroenteritis, anecdotally, 95 times out of a hundred the customer refuses. Hoteliers are becoming quite bold in that regard.
“Just two weeks ago, I was dealing with a case in Cape Verde. There was a woman who began going round the hotel swimming pool on the last day of her holiday, trying to rally her fellow travellers into claiming they were ill, explaining to them how this would work. She went to the authorities, adamant that she had been stuck in her room the whole holiday.
“But the thing is, many hoteliers now can tell when you have swiped into the buffet room. With electronic keycards, they are able to track whether people are in their rooms or not. And, besides, the maids routinely log that info anyway. She hadn’t been [stuck] in her room, and she’d been out drinking all week. So it was very simple to prove that she was lying.”
The grubby shame of those who are being dragged to court is the kicker in this morality play about little white lies. It’s about what happens when we assume that some nameless other – a faceless insurance company, a huge hotel group – can pick up the bill for our little indulgences. “People assume that money has somehow been ‘set aside’ in some giant pot, as with PPI,” says Abta’s Sean Tipton. “That it’s a victimless crime.”
At its most grotesque, the crime itself is the punishment. A sub-industry has grown up within tourism, a kind of lousy panto of people who go on holiday for the money. Right now, there will be people up in their twin rooms with a sea view in Benidorm, lying low, wasting away their sun-kissed week, emitting a hammy groan every time the maid comes to the door, just so that they can earn some compensation on their return. Holidays are often what we punish ourselves with to make everyday life feel more pleasant by comparison. But that does seem excessive.