Hotels currently concentrate an alarming number of complaints from tourists who stay in the establishments on our islands. When these tourists arrive in their country of origin, they go to law firms that advise them and sell them the idea that their vacations will be free, and on many occasions, due to the permissiveness of British legislation, they succeed. Since 2012, a study carried out by Strauss and Seidel's, indicated that the hotel sector would be one of the hardest hit by claims after the holidays.
Most of these claims are based on the fact that the tourist claims to have suffered some type of food poisoning during his vacation stay at the hotel. In recent months this problem has worsened for hotel businessmen. In hotels in the tourist areas of the Canary Islands, there has been an alarming increase in the number of claims from British tourists demanding compensation, which in most cases ranges between €3.000 and €6.000. Most of these claims are allegedly false.
The increase in claims is due to the fact that specialized English law firms have radicalized their techniques for attracting clients. In fact, they have mobile offices that go around the places frequented by British tourists, handing out cards promising "free holidays". These are known as Claim Farmers (claim collectors).
The modus operandi of these tourists is simple: after arriving from their vacations, they go to British law firms specialized in this type of situation and file a claim with the Tour Operator (TT.OO.) with which they contracted their vacation package, claiming to have Suffered some kind of food poisoning. The next step involves the Hotel where the tourist was staying. The TT.OO. will notify you of the claim and request information about the tourist's stay in its facilities, records and sanitary and hygienic controls of the establishment. The hotel will in turn notify its insurance company of such a situation, which will decide whether or not to collaborate with the TT.OO. to analyze the claim and resolve the conflict.
Legal regulation of the law of damages
The Spanish legal basis for claims for damages, whether material or bodily harm, is based on the principle of non-contractual liability for a culpable, reckless or negligent act or omission that would have caused a third party serious physical or property damage, having the injured person has the right to be restituted or financially compensated for the damage suffered (Art. 1.902 Civil Code). Our legal system imposes on us the duty to act with diligence so that we avoid causing harm to other people with our actions. La judgment of the Supreme Court of October 31, 2006 concluded that "The jurisprudence has up to now maintained the requirement of a fault or negligence of the defendant sufficiently identified to be able to declare his responsibility."
At this point, we must analyze two relevant aspects that complicate the resolution of the conflict for the Hotel:
- Jurisdiction: As the plaintiff and defendant are British nationals, jurisdiction lies with the British courts, with English law applying. The role of the Hotel in this matter, as it is not part of the process, refers to collaborating with agility, providing all the clarifications and documentation requested by the TT.OO.
- english law, as we have said, is permissive in terms of damages law. The claims are almost entirely allegedly false and for the most part are not supported by medical reports or any other means of proof that proves that the claimant has actually suffered any type of harm. In Spain, claims for damages must always be accompanied by documents that support the version of the facts. In the United Kingdom, on the other hand, the claims system is disproportionate and unfair, processing as true claims in which there is no proof or evidence of being true. The defendant must provide evidence or supporting documents that exonerate him from liability. The Code of Ethics of the Spanish legal profession prohibits incitement to litigation. For this reason, the actions of English lawyers could be seen as unfair competition. In addition, in Spain the false complaint is always constitutive of a crime.
The main problem for the hotel comes when the TT.OO. in the event of a claim, it pays the claimant the compensation requested to avoid legal proceedings, since in most cases assuming the payment of the compensation is much less expensive than paying for legal defense. When this happens, the TT.OO. tries to pass on the payment of compensation to the hotel based on its contractual relations. This action causes a serious problem for the hotel, given that in most cases these amounts will not be compensated by their insurer.
What solutions are proposed to apply to the conflict?
Short-term solutions are currently being considered to alleviate this problem, although the sector is aware that it is a difficult problem to solve as long as British legislation protects this type of behavior. A meeting between the hotel business associations and the main TT.OO has recently taken place in London. British, promoted by the Secretary of State for Tourism and the Ministry of Foreign Affairs. In said meeting, a series of initiatives were agreed to mitigate the number of false claims in the short term, among which the following should be highlighted:
- Difficulty the activity of collectors "claim farmers", by requiring authorizations and licenses to carry out their activity on public roads.
- Improve hygiene and safety controls in hotels.
- Eliminate the liability clause of the hotels in the contracts with the TT.OO.
- Change the jurisdiction to litigate and that the controversy be settled in the Spanish courts.