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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 1337 (QB)
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
| TRAVEL INSURANCE FACILITIES PLC (trading as "Tifgroup")
- and –
|TIMES NEWSPAPERS PLC
David Price QC (instructed by David Price Solicitors) for the Defendant
Hearing date: 15th May 2019
Crown Copyright ©
MR JUSTICE JAY:
(1) The meaning(s) of each of the Articles complained of.
(2) In relation to each defamatory imputation conveyed by the Articles, whether this is an allegation of fact or of opinion. (It is now agreed that this second issue arises only in relation to the Second Article.)
The Respective Cases on Meaning
The First Article
(1) there are reasonable grounds to suspect the Claimant of fraud;
(2) the Claimant has improperly ignored doctors' advice to fly patients home, refused to engage with doctors and wrongfully denied patients treatment solely for the purpose of maximising profit; and
(3) there are strong grounds to suspect that the Claimant's medical negligence and improper refusal to provide medical treatment and/or emergency flights home has wrongfully caused the deaths of a number of its customers.
(1) there are reasonable grounds to suspect that the Claimant has a practice of seeking to delay, avoid or minimise payments due in relation to medical claims under travel insurance policies, including such tactics as going against the treating doctor's advice to fly patients home, denying recovering patients suitable aftercare, deliberately avoiding contact with treating doctors and making patients pay upfront for treatment.
(2) in consequence, there are reasonable grounds to suspect the Claimant of misleading policyholders amounting to fraud.
(3) there are reasonable grounds to suspect that the Claimant has failed to take suitable care of policyholders, which may have resulted in avoidable deaths.
As regards (1) above, I have reflected the modest amendment put forward in a post-hearing written submission.
The Second Article
(1) there are reasonable grounds to suspect that the Claimant's doctor's denial of an air evacuation or transfer to a private hospital for the seriously ill Martin Blake was motivated by the wish to avoid, minimise or delay paying the costs involved.
(2) there are other cases, such as Ms Rest's, in which it is reasonably to be suspected that the denial by the Claimant of a flight on grounds of the risk to the patient and/or of private hospitalisation has been similarly motivated.
In relation to both (1) and (2), the Defendant's case is that these are statements of opinion rather than of fact. To the extent necessary, the Defendant's case is that these are Chase 2 allegations, but in my view this issue arises only if the primary case on opinion should fail.
The Third Article
(1) the Claimant wrongly caused Ms Goodman's death by ignoring doctors' advice that she had to be moved from the hospital she was in or would die; and
(2) there are strong grounds to suspect that Ms Goodman's death was not an isolated incident and that many patients may have died as a result of the Claimant's practice of delaying, avoiding or minimising payouts (there appears to be a typographical error in Mr Tomlinson's skeleton argument).
(1) there are reasonable grounds to suspect that the Claimant failed to take suitable care of Ms Goodman, which may have resulted in her avoidable death.
(2) there are reasonable grounds to suspect that the Claimant has a practice of seeking to delay, avoid or minimise payments due in relation to medical claims under travel insurance policies, including contact with treating doctors.
(3) there are reasonable grounds to suspect that the Claimant has failed to take suitable care of policyholders, which may have resulted in avoidable deaths.
Applicable Legal Principles
"[Brooke LJ in Chase] identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. In Charman -v- Orion Publishing Group Ltd, for example, Gray J found a meaning of " cogent grounds to suspect" ."
Gray J's "cogent grounds to suspect" has sometimes been called Chase Level 1½, and I have been content to adopt this taxonomy.
"... there is no dispute as to the principles to be applied. … when determining whether the words complained of contain allegations of fact or opinion, the Court will be guided by the following points:
(i) The statement must be recognisable as comment, as distinct from an imputation of fact.
(ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.
(iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.
(iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.
(v) Whether an allegation that someone has acted "dishonestly" or "criminally" is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact."
The Rival Contentions
(1) There are strong grounds to suspect the Claimant of fraud.
(2) These grounds consist in the implementation of a pattern of practice by the Claimant in delaying, avoiding or minimising payments due in relation to medical claims under travel insurance policies, entailing the use of tactics which include going against the treating doctor's advice to fly patients home, denying recovering patients suitable aftercare, and deliberately avoiding contact with treating doctors. The motive for acting or omitting to act in this was to save money and enhance the Claimant's profits.
(3) There are strong grounds to suspect that the Claimant's pattern of practice has caused some avoidable deaths.
"Everything took forever … Eventually they found a hotel but they seemed happy to leave him in the Spanish NHS as it wasn't costing them."
"There are strong grounds to suspect that the Claimant failed to repatriate Mr Martin Blake and failed to repatriate Ms Joan Rest by plane, both in circumstances where it should have done. Further, there are strong grounds to suspect that it has acted similarly in a number of other cases. There are also strong grounds to suspect that these are examples of a pattern of practice in delaying, avoiding or minimising payments due in relation to medical claims under travel insurance policies."
(1) There are strong grounds to suspect that the Claimant failed to follow doctors' advice in moving Ms Goodman from the hospital she was in, and that this failure caused her death.
(2) There are strong grounds to suspect that Ms Goodman's death was not an isolated incident, that other patients have been treated in a similar way with similar consequences, and that the Claimant's failures flowed from a pattern of practice as previously defined.
The Way Forward
The First Article
Boots travel insurer faces investigation over deaths
Customers denied emergency flights home
 The company behind Boots travel insurance is being investigated for medical negligence and fraud after the death of customers who were denied emergency flights home, The Times can reveal.
 Doctors working for Travel Insurance Facilities, which operates claims for the high street pharmacist, are being investigated by the General Medical Council after accusations that they had denied suitable care to policyholders.
 The multimillion-pound business, which trades under brands including HolidaySafe and Alpha, is also being investigated by the Financial Conduct Authority after the watchdog received allegations that policyholders were being misled.
 In one case, a customer who broke her neck in a riding accident in Spain said that she was denied a medical flight home, forcing her to travel back over land. In total the medical council is examining at least five cases involving two doctors at the insurer.
 A 40,000-word dossier sent to the Financial Conduct Authority details allegations of fraud by Travel Insurance Facilities. It alleges a pattern of practice to delay, avoid or minimise payouts.
 These alleged tactics include:
• Going against the treating doctor's advice to fly patients home;
• Denying recovering patients suitable aftercare;
• Deliberately avoiding contact with treating doctors;
• Making patients pay upfront for treatment.
 The dossier includes testimony from a former claims handler at the company. The whistleblower says: "I remember patients needing life-saving or life-changing operations and [the doctor] just wouldn't pick up the phone for weeks, knowing full well they were waiting for his call.
 "Patients were left without contact and I was the one stuck in the middle. It was horrendous. Patients would say, and I agree, [the doctor's] general practice was to frustrate the patient's family so much that they would either give up or pay for the treatment themselves therefore saving the company money."
 Travel Insurance Facilities "strongly refutes" that financial considerations influence its clinical decisions and sources close to the company deny that the conduct authority has opened a formal investigation.
 This newspaper has established, however, that allegations against the company go beyond the complaints in the dossier. The insurer has also been accused of failing to pay foreign hospitals for treatments, with one policyholder being chased for tens of thousands of pounds by a Singapore clinic.
 Last year a state hospital in the Turkish destination of Antalya became so fed up with non-payment that it refused to treat Travel Insurance Facilities policyholders, including Boots customers, unless they paid upfront. It is now accepting policyholders again but some private clinics in the country are still refusing to do so. There are also complaints about debts from hospitals and doctors in Canada, Indonesia, the Dominican Republic and Thailand.
 Travel Insurance Facilities' website says that its "cost-containment" scheme has produced "significant benefits" for insurers such as Boots that outsource their claims, including medical bills being "cut by 75 per cent on average".
 Nicholas Kingsbury, whose father died of sepsis in Ethiopia after Travel Insurance Facilities refused to evacuate him when he suffered a blood clot on the brain, said: "My father bought Boots cover but was left to die in a hospital that did not even have a defibrillator. Every McDonald's in Britain has one.
 The insurer was told that my father would die unless he was evacuated but it did not even bother to ask for the medical records and just said 'what he needs is peace and quiet'."
 James Daley, of Fairer Finance, said: "Travel insurance has seen a proliferation of new brands over the past decade with prices continuing to fall. It's been clear for some time that some providers write business at rock-bottom prices and then fight to reject or reduce every claim. But these allegations show that standards may be even worse than they appeared."
 Travel Insurance Facilities is understood to be co-operating with the medical council. The company pointed out that the complaints represented only a tiny proportion of claimants.
 It said: "When people fall ill abroad, naturally their first instinct is to want to come home. However, this may not be best for them in medical terms. Our focus is on the best clinical outcome based on expert medical advice, clinical fact, aviation medicine and our experience transporting unwell holidaymakers. We advise on the safest action in the specific circumstances of each case."
 The company added that its cost-containment programme was about cutting bills and eliminating fraud by hospitals, not denying cover. It said: "We are dedicated to protecting customers from unscrupulous and unethical practices by overseas private clinics."
 The company denies deliberately avoiding contact with treating doctors and says that when clinics insist on upfront payments, policyholders are reimbursed. Boots did not respond to a request to comment.
The Second Article
I begged, but they wouldn't pay to bring my dad home
 When Michelle Sullivan planned a family holiday to Spain she was hoping to lift everyone's spirits after the death of her mother from cancer.
 Her father, Martin Blake, 72, was joining the trip to help him to recover from losing his wife. Nothing, however, could have prepared Ms Sullivan, 44, for the angst to come. Shortly after arriving in Lanzarote Mr Blake was taken to hospital after suffering a heart attack. The doctors said his heart was damaged but they did not have the facilities to treat him. Ms Sullivan said: "They told me there were two options: transfer him to the island's private hospital . . . or fly him to Gran Canaria hospital. It was terrifying because the doctors said if he didn't get treatment he would die within a month."
 Mr Blake had insurance with Flexicover.com, which outsources claims to Travel Insurance Facilities (TIF). Ms Sullivan said it was a nightmare from the start: "Everything took forever . . . Eventually they found a hotel but they seemed happy to leave him in the Spanish NHS as it wasn't costing them."
 After a week Mr Blake was out of intensive care but growing agitated. "He thought he was being left to die," Ms Sullivan said. "Once he started deteriorating we rang TIF every day. The Spanish doctors said he was fit to fly but . . . TIF said there was no way as it might cause another heart attack or organ failure. I didn't understand. I said, 'In war, patients are bought back — why are you not doing it?' TIF's doctor just said the risk was too high. When I asked why Dad was not being moved to the private hospital he told me the clinic was fraudulent. He said the only option was to wait for Gran Canaria. Naively I trusted him because he was a doctor."
 By this stage her father was not eating properly. "The doctors put him on a drip but said we must get him home . . . I emailed TIF begging them to reconsider but they stood by their decision. In the end Dad couldn't wait any more so he paid for his own evacuation. It cost £22,000. It was his life savings but I told TIF what we were planning and they said we should be able to claim most of it back when we got home."
 Mr Blake was taken to Wrexham Maelor Hospital. Ms Sullivan said: "They were outstanding but their prognosis was not good. They said it was nothing to do with the flight but because he'd had a stroke while waiting in Lanzarote.
 "Dad was just so relieved to be home. He was in tears. He was just grabbing the hands of nurses and saying, 'I feel safe now.' It was so upsetting." He died two days later. Ms Sullivan said: "I think he gave up. He'd just been hanging on to get back. Honestly, I believe that if he had been sent home the moment he left intensive care in Spain he could have been saved."
 Ms Sullivan put in a claim to TIF for the evacuation and expenses. TIF sent a cheque for £551.96 and said another department was dealing with the air ambulance claim. Three months later she had heard nothing. Only after The Times approached TIF did a cheque for £23,000 arrive.
 TIF said its medical team advised that it was unsafe to fly Mr Blake because it would put strain on his heart and lungs. It said that his doctors did not recommend repatriation but merely stated that he could be repatriated. It added that the Spanish public hospital was the best place for his needs.
 The Times has spoken to other TIF policyholders whose cases appear similar. Elinor Staddon felt "taken for a ride" after TIF transferred her mother, Joan Rest, 74, back from Spain over land after she broke her neck while horseriding. "Mum had a huge metal frame on her head and the Spanish neurologist said she was safe to fly. Yet when I spoke to TIF they said she couldn't because of the increased forces of landing and the lower oxygen in the plane.
 "I didn't know at the time there are special medical planes that fly at low altitudes to compensate for oxygen loss. In hindsight, it's clear . . . they didn't want to pay." Ms Staddon is angry that TIF did not pay for a nurse to travel in the ambulance.
 TIF said that the combination of neck surgery and bruising to the lung meant that it was safer to repatriate by road. It added that a nurse would have been provided had one been requested but there were two paramedic drivers.
The Third Article
Insurer left my aunt to die, says Lloyd's boss
 A senior figure in the insurance industry has accused one of Britain's biggest travel insurers of abandoning her aunt to die on holiday.
 Leah Smith, the head of legal claims at a Lloyd's of London syndicate, said that Travel Insurance Facilities (TIF), which operates cover for several well-known brands, did not have De Goodman repatriated after she suffered heart failure on the Greek island of Zakynthos despite doctors saying that she would die if she stayed there.
 Ms Smith condemned the company's behaviour as "utterly unacceptable", and said it ignored the hospital's advice that her aunt urgently needed an operation that it could not perform. TIF denied the claim, insisting that Ms Goodman, 70, was too ill to travel.
 The Times revealed on Tuesday that doctors working for TIF are being investigated for medical negligence after the deaths of other customers denied emergency flights home. TIF issues more than 3.5 million travel policies a year.
 A 40,000-word dossier sent to the Financial Conduct Authority alleges that the company has a pattern of practice to delay, avoid or minimise medical claims that includes avoiding contact with treating doctors. The insurer said that the complaints represent a small proportion of claimants and denied there was any pattern of practice to deny cover. This week, however, Martin Lewis's website MoneySavingExpert.com, stopped recommending HolidaySafe, one of TIF's brands, after the revelations.
 Ms Smith said: "In a critical situation, a provider shouldn't just investigate whether a claim is valid and do nothing else because people can die and that is what happened in my aunt's case."
 She explained that in the first instance, insurers should arrange for seriously ill policyholders to get treatment then look to recover costs if there was an problem with cover, such as not declaring a pre-existing condition. "But over six days TIF did nothing," she said. "Its behaviour was astonishing."
 Ms Goodman, a retired university admissions administrator from Bromley, Kent, had cover with All Safe Insurance, which outsources medical claims to TIF. On holiday she suffered heart failure. Elaine Murphy, 69, her travelling companion, said: "The Greek doctors told me she needed urgent heart surgery but they didn't have the facilities so she should be moved to the mainland or UK."
 She called TIF but says she was met with barriers. She said TIF demanded Ms Goodman's GP records first. It was the weekend, however, so she could not have them sent until the Monday. She said TIF then claimed that it had not received them. "They said their systems crashed," she said. "Every time I spoke to a different person and got a different story. The Greek doctors kept saying, 'We haven't heard from the insurer, when will they ring?' I called several times a day and emailed but TIF did nothing.
 "After days the Greek doctors emailed TIF a summary of De's condition but heard nothing back. Eventually, the insurer said its doctor was going to look at the case but then said no doctor was available . . . It was delay after delay. TIF now says it did call the hospital but that doesn't make sense . . . I found TIF's inaction appalling. I couldn't understand because 26 years ago De and I were involved in a car accident in France and our insurers got us airlifted home."
 In the UK Ms Goodman's family was frantic. Ms Smith tried to help but she got nowhere either. She said: "They just quoted data protection at me."
 Six days after being admitted Ms Goodman died. Ms Murphy added: "TIF said a decision about treatment had been made but if that is the case, it didn't tell me, the family or the doctors. Besides, it said its decision was that De would've been better off staying put. I believe that if De had been flown out urgently, she would still be with us."
 TIF insisted that it made "multiple calls" to the treating doctor but he returned only one call. It said that it was the hospital's duty to arrange transfer to an alternative facility.
 It said it did not receive the information necessary to consider a transfer but that in any case, the limited details provided suggested that Ms Goodman was too ill to be moved. It denied that finances influenced its clinical decisions and said: "The claim that we obstruct customers in an emergency or critical situation is false. We take every step to ensure customers are brought home as soon as it is medically safe.
 "While understandably the first instinct of anyone sick or injured abroad is to want to come home immediately, travelling in an air ambulance involves specific clinical risks. If the hospital thought a transfer within Greece was suitable, it would have been arranged by them, had they felt Ms Goodman was well enough to be moved."