A Conflicted Expert and Holiday Illness Claims

By: Dr Tristan Jenkinson

The Case in Bux

Recently, Gordon Exall posted regarding the decision in Bux v The General Medical Council. The case highlights the importance of an expert witness’s duties – in particular with regard to the disclosure of conflict of interest.

While the Bux case relates to the medical profession, the comments made by Mr Justice Mostyn in his judgment are relevant to all expert witnesses – as emphasised by Gordon Exall, whose opening was:

“Every litigator and, particularly, every expert witness should have a very close read of the judgment of Mr Justice Mostyn”

The Bux Backstory and Conflict

Dr Zuber Bux provided medical expert reports, in relation to claims of food poisoning at hotels, for several firms of solicitors, including AMS Solicitors Limited.

Unfortunately, those expert reports did not disclose that his wife was a partner at AMS Solicitors.

MDU Raise a Concern

In January 2011, the Medical Defence Union (MDU) wrote to Dr Bux, stating the following:

 “I understand that your wife is a director of AMS solicitors, a company that provides some cases for a medical-legal agency that you work for. You have recently had a report rejected by an insurance company who apparently considered that the association between you and the firms of solicitors prevented your opinion from being independent…

In accordance with GMC guidance, in Good Medical Practice (2006), I think that you may wish to declare to your clients and to any insurers that your wife is employed by the company…

In light of the GMC guidance I believe that if an insurer or client had any cause for concern about a report you provided and sought to complain to the GMC, your association with AMS solicitors might be considered by the GMC to represent a conflict of interest and therefore in breach of your obligations as a registered medical practitioner if it has not been openly declared…”

Following the letter Bux appears to have paused writing such reports.

The 2016 and 2017 Reports

Then in 2016, Dr Bux continued writing reports, this time exclusively for AMS Solicitors, on what Mr Justice Mostyn refers to as “an industrial scale”. This is not the exaggeration many may take it for, with Bux providing reports for 684 cases in 2016 and 2017, in return for payments totalling £123,120, which were paid to a company, Bux Incorporated Ltd, owned 55% by Dr Bux, and 45% by his wife.

Mr Justice Mostyn said of these reports:

“The reports were written by the appellant, so far as I can tell, on a boilerplate basis. They were superficial, unanalytical, devoid of any differential diagnoses, and were invariably supportive of the claim”

Complaint and Action

In 2018 the General Medical Council received a complaint. In turn the Medical Practitioners Tribunal, in a decision given on 16 October 2019, directed that Dr Bux be removed from the Medical Register not just on findings of an undisclosed conflict of interest, but also that he:

  • “gave a deliberately false answer (in a reply endorsed with a statement of truth) to questions posed to him as an expert under CPR 35.6” and
  • “made diagnoses without proper evidence, without identifying the existence of a range of opinions, and had in his reports failed to follow the requirements of CPR Part 35”

The judgment issued earlier this week is the result of an appeal from Dr Bux against his removal from the Medical Register.

The Duties of an Expert

The duties of an expert are expressly stated in CPR Part 35. An expert report must (under CPR 35.10) contain a statement “that the expert understands and has complied with their duty to the court”.

Some of the required content of an expert report are discussed in paragraph 3 of the accompanying practice direction (PD35) at paragraph 3. Specifically they state (at 3.2(9)) that the report must:

“Contain a statement that the expert

  • understands their duty to the court, and has complied with that duty; and
  • is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.”

Mr Justice Mostyn visits the duties of an expert, with a focus on the requirement of independence, referring to CPR PD35 paragraphs 2.1 and 2.2 which are below:

2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

We then visit case law from Lord Wilberforce from Whitehouse and Jordan:

“Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation”

Mostyn then refers to one of the most well-known cases in relation to expert witness guidance, The Ikarian Reefer:

“An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise”

The Judgment

Mr Justice Mostyn makes clear that it is his view that:

“… there are two types of conflict of interest. An expert witness will be conflicted not only when a personal interest actually influences his testimony, but will also be conflicted when a personal interest is capable of influencing his evidence”

Justice Mostyn also agreed with findings made by the MPT, including that “ordinary, decent people would consider the appellant’s conduct dishonest” and that “the appellant’s conduct was plainly financially motivated”.

The appeal was dismissed and Bux will therefore be removed from the Medical Register.

Holiday Food Poisoning Claims

The background of food poisoning claims is interesting in itself.

There was huge growth in the number of sickness claims made against hotels, particularly by British holiday makers, in the last decade. The Guardian reported that there had been a 500% increase in such claims) between 2013 and 2016, with El Pais estimating a further 700% increase from 2016 to 2017.

This perhaps puts a little context behind the “industrial scale” of Dr Bux’s reporting in the 2016 – 2017 period.

The Guardian links the increase in food poisoning claims to the drop in whiplash claims after steps were taken to curb exaggerated and fraudulent personal injury cases such as whiplash. The change in approach linked to fixed legal costs being introduced in 2013 for many personal injury claims in the UK… However, cases which occur abroad, such as holiday illness cases overseas, were not included.

A further reason that claims companies were seen to be moving into these claims was a second legal change made in 2013, which was when “qualified one-way costs shifting” was introduced. This meant that if a hotel were to successfully defend a claim, they would not be able to reclaim their legal costs without proving that the claim was fraudulent. This led to many such claims being settled, rather than challenged.

Holiday Food Poisoning Fraud Schemes

 A number of organised frauds around hotel food poisoning claims were exposed. El Pais provides details of one particular case, where hotels in Mallorca were targeted “sales agents” sent to a number of hotels to persuade holidaymakers to pursue a claim with them. The firms pursuing the claim reportedly offered clients up to €18,000 with a 98% success rate.

In May 2017, the Foreign Office (in a page archived here) warned British tourists traveling to Spain against making fraudulent claims, stating:

“There have been reports of an increase in holidaymakers being encouraged to submit a claim for personal injury if they have experienced gastric illness during their stay. You can find more information about the action you can take if you have suffered a personal injury on the Citizens Advice website. You should only consider pursuing a complaint or claim if you have genuinely suffered from injury or illness. If you make a false or fraudulent claim, you may face legal proceedings in the UK or Spain.”

ABTA (The Association of British Travel Agents) also warned about the risk of holidaymakers being targeted by claims firms in the summer of 2017.

The SRA (Solicitors Regulation Authority) placed a warning for law firms who may be involved in such frauds, raising concerns about some of the behaviour within law firms that had been observed, and stating that firms doing so could face regulatory action, as shown below (from archived copy found here):

We have seen firms:

– taking on matters whilst lacking competence and skill in the area of law
– failing to ensure that they do not accept cases from introducers who are cold calling or failing to verify the source of the referral
– entering into improper referral arrangements and allowing their independence to be compromised by, for example favouring the interests of the referrer
– failing to properly identify clients and confirm client instructions including the verification of relevant documentation to support a claim
– bringing a claim without first investigating whether it is valid
– making unreasonable requests for disclosure from the defendant or their lawyers
– failing to objectively assess and investigate adverse evidence
– failing to properly advise clients about what will be expected of them when making a claim
– submitting false or dubious claims in the hope of a settlement without further investigation by the defendant
seeking unreasonable costs – either from the client or the defendant

Firms who conduct cases which demonstrate one or more of these features may face regulatory action for breach of our Principles.

The SRA warning went on to say that:

“There are a number of reports of cases where claims have been dismissed as dishonest, leading to costs orders against claimants and even a criminal prosecution. Solicitors do not help clients by bringing claims that have not been rigorously investigated, including consideration of adverse evidence.”

Couple Caught – The Benefit of Evidence from Social Media

In 2017 Deborah Briton and Paul Roberts were jailed as a result of making fraudulent claims of holiday illness against Thomas Cook on two all-inclusive holidays to Mallorca in 2015 and 2016.

Briton and Roberts claimed £19,958, with claims for a further £28,000 in legal costs, highlighting perhaps the popularity of pursuing overseas claims where legal costs were not capped. The claim was made in August 2017.

As reported by Whitestone Chambers, the claim requested damages for “diarrhoea, stomach cramps, fever, lethargy and nausea”, and a letter of claim stated that “Our client’s holiday was ruined due to their symptoms as they were ill for the entire remainder of the trip. They were unable to enjoy the holiday”.

However, a review of Facebook showed that after the first holiday in June 2015, Briton had posted “Safely home after two weeks of sun, laughter, fun and tears. Met up with all our lovely holiday friends who made our holiday fab”. Then after the second holiday in June 2016, “Back home after a fantastic holiday, my favourite so far”.

Subsequent to the discovery of the Facebook postings, Thomas Cook sought a private prosecution against Briton and Roberts.

Judge David Aubrey said of the claims:

“They were bogus from start to finish, you were both asserting on your behalfs and on behalf of your two children that on two separate holidays you had suffered illness. They were totally and utterly fake”

Judge David Aubrey concluded that:

“Those who may be tempted in the future to make a dishonest claim in relation to fake holiday sickness, if they are investigated and brought to justice, whatever the circumstances of an individual, he or she must expect to receive an immediate custodial sentence”

Briton admitted four counts of fraud and was sentenced to nine months in jail, Roberts received 15 months in prison.

Response from the Government

On the same day that Briton and Roberts were sentenced, the UK Government announced a call for evidence of fraudulent claims from holiday companies. Boris Johnson stated:

“The recent rise in false claims against tour operators, partly fueled by unscrupulous touts, tarnishes the UK’s reputation overseas. It is also hugely unfair to those who genuinely do become ill, who risk becoming victims of unjustified suspicion. This is the first step in fighting the scam holiday claim epidemic”

The results of the call for evidence can be found on the Gov.UK website here.

In May 2018, action was taken to fix the legal costs for such claims, by extending fixed legal costs to cover such claims. In addition a pre-action protocol detailing “the conduct and steps the court would expect parties to take before commencing proceedings” was introduced.

I believe that it would be safe to say that the number of claims for food poisoning while abroad in the last year (2020-2021) will certainly be lower than previous years.

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