Following the first anniversary of the changes, we review how the industry has been affected and what the future holds.

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1 The Issue 1 Summer 2014 Magazine LASPO one year on Following the first anniversary of the changes, we review how the industry has been affected and what the future holds. Also in this issue The Balanced Argument A review of the ABI Code for victims of road traffic injuries from both sides of the fence. Mitchell Relief Latest amendments to the CPR offer some relief from sanctions.

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3 CONTENTS The MASS Insight Magazine Summer 2014 editor s note 5 Highlighting the important issues from the PI industry discussed in this inaugural edition. mass matters 18 The benefits of being part of a strong and united organisation are many and varied and can only help law firms in times of change. Feature Article LASPO One Year On With the first anniversary upon us, we discuss the effects of the changes and the future of our industry. 6 charity round up 19 An update of activities supporting the MASS charity - Aspire mass golf day 20 Networking opportunities at the MASS Golf Day. hot off the press 13 Reporting on the recent announcement to amend CPR Rule 3.8 on extension of time will this assist the Mitchell decision? claims portal 13 Are you complying to the User Agreement Claims Portal Limited undertake audits. Feature Article the balanced argument MASS and ABI give their views on the new ABI Code Support for Customers with road traffic injuries. 14 MASS MEMBERSHIP 20 Just some of the benefits of being a MASS member. foresight 23 More change afoot what is next on the horizon for all involved in personal injury claims. The next edition of the MASS Insight Magazine will keep you informed. conference The must attend event of the year. See details for attending, exhibiting and sponsoring. editor Roger Henderson contributors Jane Loney Jenny Braunton Phil Coupland design Paul Skuse azurdesign.co.uk advertising June Lowe Telephone Motor Accident Solicitors Society St Bartholomews Court, 18 Christmas Street, Bristol BS1 5BT Telephone DX Bristol Printed at Doveton Press, Willway Street, Bedminster, Bristol BS3 4BG. Tel www. dovetonpress.co.uk 3

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5 Editor s Note Welcome to the inaugural issue of The MASS Insight Magazine which reflects current developments, news and issues from the personal injury claims industry. Roger Henderson Editor, The MASS Insight Magazine In this issue, we hear from Craig Budsworth, Chairman of MASS, and James Dalton, Assistant Director of the ABI, who discuss the recent introduction of the ABI s code entitled Support for Customers with Road Traffic Injuries. Many viewed the LASPO and Jackson reforms as all doom and gloom whilst others saw the different legal landscape as presenting new opportunities... April 2014 marked the first anniversary of the implementation of the changes made by the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) and Jackson Reforms. From pages 6 to 12 we provide perspectives from five different sectors of the claims industry on the LASPO reforms. Many at the time viewed the changes as all doom and gloom whilst others saw the different legal landscape as presenting new opportunities. Let s see what the view is now a year on. In addition, MASS and others are currently awaiting developments with the Civil Justice Council over the possible relaxation of the tough judicial approach imposed by the Mitchell case. important function MASS serves in terms of representation for accident victims and also a summary of some of the many benefits that MASS provides for its Members. The MASS Charity Golf Day is coming up on 12th June 2014 at the magnificent Menzies Welcombe Hotel Spa and Golf Club, Stratford-upon-Avon. Those who have supported the MASS golf day previously will know it provides an excellent opportunity to entertain guests or clients and provides great networking opportunities. The same can also be said of the MASS Conference which really is a must attend event....let s see what the view is now a year on. This year it is being held in Manchester on 7th November. The conference is one of the highlights of the personal injury calendar so please contact the MASS office for further information. Further information about MASS and its vital work can be found on the MASS website together with information as to how to subscribe to further issues of this magazine. I am sure you will enjoy the new look magazine and please feel free to any views or feedback to me via the following address: MASS has always adopted a collaborative and inclusive approach when dealing with other stakeholders in the quest for justice for road traffic victims. In our MASS Matters section from page 18 you will find details about the 5

6 The MASS Insight Magazine LASPO One year on. Following the first anniversary of the changes brought in by the LASPO Act and Jackson Reforms, we ask five key industry leaders to share their thoughts on the changes one year on. 6

7 LASPO One Year On The nature of the regulatory challenges facing Claims Management Regulation has evolved considerably since regulation was introduced in We continually look to improve the delivery of a robust regulatory regime that the public can trust to drive out bad practices from the industry, while allowing compliant claims management companies (CMCs) to go about their business, providing efficient and competitive services to consumers who wish to use them. Last year s reforms A significant programme of reforms was undertaken in 2013 centred on more robust enforcement and stricter rules requiring CMCs to raise standards. In a series of measures made in response to consumer concerns, we introduced key changes to the conduct rules for CMCs to help strengthen existing action to raise standards and better protect consumers. Most crucially we brought an end to verbal contracts and imposed a ban on CMCs offering cash incentives or similar benefits to consumers to bring claims. Kevin Rousell Head of Claims Management Regulation We also recognised a need to be more transparent in our decision making and began publishing online the most recent enforcement decisions and live investigations, as well as quarterly updates on our work to tackle malpractice in priority areas of concern. Referral fee ban As part of reforms to the costs and funding of civil litigation, referral fees paid between CMCs, lawyers, insurers and others for personal injury claims were also banned. Prior to this ban there were no legislative controls on referral fees, which were estimated to be around per case (an increase from around 250 in 2004). This reform and other related civil justice reforms were a long time coming. Since Lord Justice Jackson s preliminary report was published almost five years ago, there has been an almost constant process of consultation, legislation, implementation, adaptation We also recognised a need to be more transparent in our decision making and began publishing online the most recent enforcement decisions and live investigations and reflection. One year on is an opportune moment to take stock of work in progress, following the referral fee ban. We have been closely monitoring how the industry is adapting to the ban, making sure CMCs are following the rules, and working closely with partners such as the Solicitors Regulation Authority (SRA) and the Financial Conduct Authority (FCA), sharing information and raising issues as they emerge. We have already inspected the practices of more than 900 CMCs across England and Wales, identified issues with over 300 CMCs in relation to their business models and issued 65 warnings for rule breaches. Those CMCs we continue to have concerns about will be subject to further monitoring and enforcement action, as appropriate. Some interesting evidence has already emerged, although not surprising. We have observed shifts in business practices. Some firms have become alternative business structures, as have a number of insurers. Most notable of all is the steep decline in the number of CMCs doing personal injury work down by more than 500 CMCs (40%) in a year. At the start of 2013, around 2,300 CMCs were operating in the personal injury market, falling to around 1,200 CMCs in March We anticipate that the market will continue to contract further as CMCs who are unable to adapt their business models to comply with the referral fee ban, leave the market. Looking ahead And those are impacts of reforms already in place, but there are more to come. By the end of this year, 7

8 The MASS Insight Magazine It has been a tough year for claimant personal injury lawyers. We knew it would be. the conduct rules for CMCs will be strengthened further to put a greater onus on CMCs to ensure claims are properly substantiated and investigated, and subject to Parliamentary approval, CMCs will for the first time face financial penalties for poor conduct. The details of the financial penalties scheme are currently being consulted on. We are also aiming to bring consumer complaints against CMCs within the remit of the Legal Ombudsman. This will allow consumers to benefit from the Legal Ombudsman s wider powers for redress, including the ability to award compensation, whilst enabling us to dedicate more resources to tackling bad practice. We are boosting our operational capabilities with additional staff to help ensure we can meet the regulatory challenges ahead, and have increased the regulation fees paid by CMCs for to ensure that the claims sector and not the taxpayer continues to pay its way and provides the sufficient resources needed to meet the cost of regulation. Conclusion This year s reform plans give us huge opportunities to do things better, providing flexibility to adjust the scope and operation of regulation as needed to respond to the changes and volatility in the claims market. As the claims industry continues to evolve, their practices are being monitored and we will respond with further reforms as necessary to provide better protection for consumers and the public. The industry, of course, also has its part to play in driving up standards. CMCs must give consumers and defendants more confidence in the system by ensuring that they comply with the rules. Susan Brown MASS Vice Chairman Prolegal Limited The end of recoverability of success fees and ATE premiums was in itself going to create challenges for claimant lawyers, although as it turned out this was certainly not the worst challenge. Fixed fees in the fast track, the ban on referral fees, cost budgeting in the multi-track, and of course Mitchell, have complicated our lives in different ways, and it shows no sign of getting any easier. Success fees Many of us, including MASS as an organisation and individual members, campaigned hard against ending recoverability. It is not constructive to revisit the arguments that were well ventilated in the period leading up to the enactment of LASPO, but I just want to say here that I still believe that claimants deserve the full compensatory award that is calculated on a basis that allows them a modest sum by way of general damages, and their financial expenses and losses. Many personal injury lawyers hoped to be able to avoid taking 25% of damages, but the level at which fixed costs were set makes this unworkable for most of us; we simply cannot economically run fast-track claims for the fees we recover from the other side. Most claimants are simply having to accept that 25% of their compensation will be deducted to go towards their legal costs, and that a 10% uplift on general damages in most cases is nowhere near enough to plug the gap. ATE My personal view is that it is highly desirable for claimants to have insurance to cover Part 36 risks, but that it is extremely difficult to explain to claimants when receiving initial instructions exactly what they are insuring against and whether it meets their needs. The issue of whether ATE is required to cover disbursements is of course a commercial one for a law firm and their client, but the solicitor does have an obligation to explain to clients that their funding options include funding disbursements themselves; depending on the cost of ATE - which is generally modest in motor claims but more expensive in employers liability and public liability claims - that may be a better option. And then of course we need to try to explain QOCS. Which is a hard job. Not least since no-one actually knows what it will mean. Fixed fees in the fast track These are too low. Again pointless to revisit as they are currently a fact of life, but there is no doubt that they were arrived at in a way that 8

9 LASPO One Year On demonstrated no understanding of the work involved and the entire irrelevance of referral fees to the cost of running claims. Unfortunately they have created opportunities for business models that encourage the processing of claims rather than the representation of claimants. I accept that defendant law firms receiving volume instructions from insurers have been working on fixed fees at similar levels for some years, but the job of defending a claim for an insurance company from the point of court proceedings being issued to settlement is a very different one from the job done by a claimant lawyer representing an injured claimant, potentially from accident to trial, with all the background support and advice that involves. Fixed fees have to take into account the swings and roundabouts, the fact that some claims will be straightforward and settle early, and some will be complex and proceed all the way to trial, but for claimant lawyers there will always be a significant irreducible amount of work in straightforward claims, whereas for defendant lawyers sometimes it is simply a matter of looking very quickly at a claim, realising that it is one to settle, and settling it. Referral fee ban This has proved ineffective, as was widely predicted. Many businesses have simply re-structured to enable them to continue to refer work from insurer or claims management company to solicitor under an ABS model, others have found methods they believe to be effective to refer work and receive a payment for the referral without breaking the law. Cost budgeting Of course this makes sense in high value claims, and can be a good way to enable the courts to manage cases effectively - something we have been promised (or threatened with) since the introduction of the Civil Procedure Rules, but which has never really worked as intended - but for claims at the lower end of the multitrack, is unnecessarily expensive and cumbersome. The cost of preparing a cost budget in a 26,000 claim is probably similar to the fixed costs The industry is still adapting to the new landscape, and will no doubt continue to evolve and adapt over the next year that a successful claimant will receive for all the work done in winning a 24,900 claim. The other problem we see at the moment is that different courts and different judges have very different appetites for the cost budgeting process. Mitchell The Court of Appeal wanted to deliver the message that litigants and their solicitors needed to take the amended r.3.9 seriously. Relief from sanctions would not readily be granted. The point has been well made, but the judiciary need to bear in mind that the overriding objective has not actually ditched the requirement for courts to deal with cases justly. Reading many of the post-mitchell judgments you really would think that it had. Punishing practitioners for flouting court orders, wasting judicial time and delaying cases progress to trial is one thing. Creating a situation where litigators are paralysed with fear that an unintentional default that has no material effect on the other party or the progress of the claim will have dire consequences is quite another, and that is the point we have reached. Whilst I fully accept that the peace of mind of solicitors is not the concern of the judiciary, justice for the parties to litigation surely is, and ultimately they are the ones who are affected. Currently mainly because progress with their case is delayed while it is snarled up in court delays in dealing with Mitchell applications, but ultimately the problems will be either in having to take their cases to court, either as claimants or defendants, without witness evidence or whatever expert evidence has not been served on time, and/or in having to try to pursue professional negligence claims against their solicitors. Professional negligence claims are seldom straightforward, and claimants, particularly where there was a liability or causation dispute, may find it difficult to find a solicitor willing to undertake a claim under a CFA, or if they do, will have to pay their own success fees and ATE premiums from damages awarded, so even in the best possible scenario will lose out. One year on, the industry is still adapting to the new landscape, and will no doubt continue to evolve and adapt over the next year. 9

10 The MASS Insight Magazine The ATE industry was significantly affected by the change in legislation, which was not a surprise. The removal of recoverability of premiums meant that price and cover became key benchmarks changing the dynamics for all parties. Joe Walch Business Development Manager LAMP Services Limited The market began to see significant price differences in the ATE market for core ATE products. Rumours just after April 2013 suggested RTA products ranging from around 0-40, with very steep price increases at later stages, to flat premiums of 400. Higher premiums still offered significant commission payments, sometimes upfront and representing a significant percentage of the gross premium to Claims Management Companies. It was questionable whether these price extremes were sustainable and the current market information seems to suggest they were not, as those scheme offerings appear to be drying up and in some cases insurers are now suggesting a change in their agreement terms. At LAMP we are very focused on a key requirement of the insurance industry, namely Treating Customers Fairly, which is particularly relevant to the ATE industry as the payment of commissions to introducers and brokers would need to stand up to scrutiny. This therefore meant that those taking commission would have to justify what they are providing the customer in exchange for commission or fees. For example prices in RTA have dropped by 75%, much to the relief of the claimants. LAMP s RTA product range, for example, starts at 99 flat premium, the price reduction being a fair reflection of the reduction of risk as a result of QOCS. Post LASPO the reality of the market is that it is of more interest to pursue low value high volume cases. The essence of the Code is all about the complying insurers making sure their own customers are aware of their rights when bringing a claim Access to justice for industrial disease claimants for example has become more expensive to pursue with claimants generally receiving less compensation in their pockets. Because of the changes in premium levels it was assumed that many small Claims Management Companies or Introducers would give up and look elsewhere for their bread and butter. This is certainly true of some who have changed their approach to how to charge for services, or simply left the industry altogether. There does remain a significant number, however, who are genuinely interested in the progress of their clients claim and are now expressing interest in an ATE partner which has put some thought into the long term. We are finding that Solicitors are making informed choices about which insurer best represents the needs of their clients and will be there for the client when they need to make a claim. Solicitors are therefore taking a greater interest in not only the price of the product but whether it works well with their own charging structure. Most practices are now safe in the knowledge they are offering adequate protection for clients, some practices approaching us to for solutions where the Solicitor pays the ATE premium for the client. The changing landscape post LASPO offers an opportunity for Solicitors and Insurers to work together on innovative insurance solutions that suit them better and offer greater value for the client. Certainly the market is a lot more interesting than it appeared a year ago. 10

11 LASPO One Year On What s the defendant solicitors perspective on Jackson/LASPO one year on? Inevitably in some areas it will be similar to that of claimant solicitors but there are some distinctions. David Johnson President of FOIL Overall, the changes demanded of defendant lawyers have been less profound. Fixed costs in relation to lower end cases and reduced levels of return on higher value cases have in many instances been a reality for defendant lawyers for years, albeit imposed progressively during the course of commercial negotiations with insurer clients, rather than over night through the imposition of statutory limits. Similarly, whilst working in a LASPO environment for many means embarking on the path towards a consolidated market, with business models and structures geared up towards exploiting economies of scale, the defendant community has long since been engaged in that process and the LASPO changes have merely served to underscore an existing imperative. The changes surrounding the procurement of work (i.e. the ban on referral fees) and the funding of claims have not substantially affected defendant firms route to market, nor their client retainers, in the majority of cases. On those fronts, at least, the challenges thrown up for claimant firms have been considerably greater than for defendant firms. By contrast, CPR 3.9 and the Mitchell judgement in my view give rise to similar challenges for claimant and defendant solicitors alike. In a sector where the starting point for business success must be to conclude a case in a competent manner, the concerns arising out of the new draconian approach to relief from sanctions apply very much across the board. Professional negligence insurance spend and reputation are the main focus of concern. Reputation is all the more important where there is a high dependency on institutional, repeat clients, be they insurers or unions. In relation to costs budgeting, the position is not as straight forward. On the one hand, I have no doubt that claimant and defendant lawyers alike would very much appreciate a greater degree of consistency from the courts when it comes to the deadline by which parties are required to file costs budgets, the format that the budgets are to take and, fundamentally, the process by which the budgets are set. However, when it comes to the strategic approach to costs budgeting, the focuses are perhaps subtly different. The real concern for defendants is not so much the threat to costs recoverability, which for defendant s will become increasingly limited by QOCS in any event. Rather, their focus will be on not missing the opportunity that cost budgeting offers in terms of reigning in claimant excessive costs. Prospective budgeting has the potential to bring about a level playing field when it comes to costs assessment. The challenge is to translate that theory into practice. Whether that will be achieved is not yet clear. And then there is QOCS. To date the experience there is limited. Looking to the future, on the one hand QOCS gives rise to the prospect of hollow victories, Defendants ending up facing significant costs bills even when they win. However, the exceptions to QOCS also give rise to opportunities. In an environment where the client does not expect to make a costs Challenges for claimants have been considerably greater than for defendants recovery, the Defendant lawyer who can advise effectively on Part 36 has the potential to shine. Inevitable the Defendant community will also be looking to have fundamental dishonesty defined widely, with a view to tackling not just fraudulent cases but also those which are overtly exaggerated. And consider whether as a consequence of the trade off between QOCS and success fee recoverability, Defendants might not be more willing to run cases to trial. Certainly the financial stakes involved in taking such a step will have diminished. 11

12 The MASS Insight Magazine LASPO was a significant change. From an insurer perspective, what have I noticed? Firstly, in the first 4 months of 2013 up to implementation I saw a significant increase in the volume of new notifications being put onto the portal as solicitors sought to maximise claims under the old fee regime. Andrew Wilkinson Head of Technical Claims, Motor Liability, Aviva PortalCo indicates there was an increase of over 50,000 notifications as opposed to the same period in Since then things have stabilised but in the round volumes for 2013 were higher. I don t see anyone successfully arguing that post LASPO it is harder to bring a claim. Secondly, the expansion of the RTA Portal into higher value and EL/ PL claims has been successful which has to be good for everyone. The movement of the Stage 1 fee has also effectively tackled the 400 Club. The General Damages increase has proven relatively straight forward with both sides demonstrating pragmatism. It will be some time again before the full impact is seen. I have not yet seen many higher value claims settling within the Portal process, but it is still early days. I have however seen some very large claims being initiated by way of CNF. I don t know whether this is simply process failure at claimant solicitors not recognising the potential of their client s claim or a deliberate attempt to try to obtain an early admission. I also have concerns that the quality of some CNFs is not as good as it could or should be. Thirdly Costs - the new fee regime is starting to bed in now. With the large influx of old style claims in H we only really started to see the impact in the later part of The new fee regime is resulting in more claims settling in the Portal faster. The removal of recoverability of success fees and ATE premiums has also been positive. I wholeheartedly supported Lord Justice Jackson s view that recoverability was creating disproportionate costs and left the claimant with no skin in the game. I have not yet seen many instances where QOCS or the new P36 sanctions have been problematic. My fears of significant satellite litigation have not (yet) proven founded. We will see! While a lot of noise has come from the Mitchell decision, from an insurer perspective I have seen positives and negatives. Cost Budgeting is at best a mixed bag. I have seen some examples of Judges acting proactively and challenging cost budgets as they should. I have also seen some cases of rubber stamping or complete disinterest. Until some consistency emerges the Jury is out. Fourthly, the personal injury market is still dynamic, with some firms having closed or pulled out of the market while others have expanded and adopted new models of working. I know that some claimant solicitors are using medical agencies, rehabilitation and (alleged) psychological injury simply as a means of generating additional income. This is a practice that is unacceptable. I think that referring a client to rehabilitation where it is needed is a good thing, but studies from Canada and Australia indicate that in whiplash cases generally less treatment is better for an injured claimant s recovery. The number of times I see referral for 10+ or even 20+ sessions of physiotherapy supplied or recommended by agencies who have relationships with the solicitor is of concern this cannot be in the best interests of the claimant. It is simply a fee generator. I hope the work the MoJ is doing on whiplash medical evidence will recognise and address this. Fifthly, I do not think the referral fee ban is effective. Referral fees have simply become lost in the system. I read an article about one group paying c 150m a year in acquisition costs. I think the Regulators need to look at the way some parties are interpreting the ban and highlight what is and what is not acceptable. For this reason I maintain the view that the most effective way of tackling this problem is to raise the Small Claims Track limit. Aviva is supportive of the Competition Commission remedy to extend the LASPO referral fee ban to include repair and mobility claims. Finally, what more have we got to look forward to? The MoJ work on whiplash and medical evidence is pushing forward. I hope this will introduce fixed fees for medical reports and a greater degree of independence into the process and help to tackle fraud which remains a big problem. It has been an interesting 12 months and I suspect there is more to come! 12

13 Hot Off the Press Relaxation of the Mitchell case? As the magazine was going to press, it was announced that there will be an amendment to Civil Procedure Rule 3.8 which will allow extensions of time between parties of the Court timetable without the need for an application to the Court. It will be remembered that CPR Rule 3.8 is the rule which allows sanctions to be imposed by the Court for default on Court orders and directions. This was backed up by the case of Mitchell last year which continues to strike fear into practitioners where time limits have been overlooked, sometimes only by a matter of hours. Under amendments to the Civil Procedure Rules, which will come into force on 5th June 2014, there will now be an exception to Rule 3.8(3) which is as follows: In the circumstances referred to in paragraph (3) and unless the Court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for a maximum of 28 days, provided always that any such extension does not put at risk any hearing date. Whilst at first glance this could be seen as a significant relaxation on the Mitchell rule, there remain many caveats and conditions within the amendment: 1 Unless the Court orders otherwise ensures that the Court retains the ultimate decision on matters but changes the burden so that the Court must make such an order, rather than the parties making a direction to avoid it. Previous conduct or a history of previous non-compliance with the rules or Court orders can therefore still influence the Court in making its order. 2 Prior written agreement. The 28 day extension will only apply if the agreement between the parties is written down before the relevant deadline has passed. Clearly if one party does not agree with the extension then an application will still be required. 3 Limiting the extension to 28 days ensures cases are kept on track and longer extensions will still require an application to the Court with all the current risks of tough judicial sanctions. 4 Providing that the 28 day extension does not put any hearing date at risk will perhaps lead to a flurry of satellite litigation in relation to what exactly is meant by putting a hearing at risk. So only time will tell how this amendment to Rule 3.8 and Practice Directions 28 and 29 will bed in in practice but in the meantime, judicial sanctions and the need for accurate timetabling and proactive case management seem set to remain. Claims Portal User Agreement Are you complying? Users are advised that Claims Portal Limited (CPL) propose to carry out some audits as part of a pilot to ensure that users are complying with the terms of the User Agreement, particularly in relation to security. The intention is to select a few web browser user organisations (not A2A) and visit them to carry out an audit, the scope of which is set out below. The scope of each audit will involve assessing the controls the User organisation has in place to ensure that Portal access is only given to appropriate parties in accordance with the terms of the in-force User Agreement. Specific controls included within the scope relate to: Updating the Portal with changes to company information e.g. name that affects the User firm s ability to trade and CPL s ability to identify the firm responsible for its actions; Communicating user access requirements from the User Agreement to users within the organisation; Implementing these requirements, in particular:» Allocating user profiles only to appropriate staff members;» Vetting any access given to users of firms providing outsourced services;» Managing user profiles e.g. leavers, dormant accounts;» Maintaining security over user access passwords, including re-sets;» Maintaining confidentiality of data accessible via the Portal; and» Monitoring organisations compliance with Portal user access requirements / breaches. 13

14 The MASS Insight Magazine 14

15 The Balanced Argument The Balanced Argument In line with this inaugural edition, we are introducing a new feature in the form of a balanced argument, with two [opposing] views being expressed on a specific topic within the industry. Being involved in a road traffic accident is by its nature traumatic and making a subsequent claim can often be confusing and stressful. How the accident victim is cared for during that process is a contentious point. Should legal representatives always be used or can insurers provide a fair and just service? Publishing their new Code Support for Customers with road traffic injuries in February, the ABI think so, but not all are convinced. The Motor Accident Solicitors Society (MASS) and ABI have been foes and occasional friends over the years when debating the road traffic accident claims process. Two leading figures within these organisations express their views of the new ABI Code. Craig Budsworth MASS has campaigned for over 20 years to bring justice to the victims of road traffic accidents and strongly believes that access to independent legal advice is imperative when pursuing a claim. Chairman, Craig Budsworth questions the practice and motives of many insurers and whether this voluntary code will really benefit the accident victim. James Dalton As head of motor liability at the ABI, James Dalton explains why the ABI introduced the Code, questioning the need for costly legal representation and advocating that with appropriate guidelines, insurers can provide the service, support and compensation which accident victims are entitled to. 15

16 The MASS Insight Magazine In February, the ABI released it s Support for Customers with Road Traffic Injuries: The ABI Code. The aim of the Code is to ensure that the interests of all customers come first. Some commentators have referred to this Code as being in relation to third party capture but that is clearly incorrect as the Code sets out commitments of complying insurers when communicating with a customer about a claim, whether direct or through third parties. So what does that actually mean? Craig Budsworth, MASS Chairman Well, this is about how the insurers who have signed wish to be perceived as complying with the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). Specifically, as reported in Post Magazine, to ensure that they are not accused of having their own mouths in the trough of personal injury. The essence of the Code is all about the complying insurers making sure their own customers are aware of their rights when bringing a claim. So the insurer using a panel lawyer will agree to make sure that any links to the lawyer are advised to the customer. The complying insurer will advise the customer of any restrictions that apply under the legal expenses policy that is funding the claim being brought and highlight the customer s right to choose their own legal service provider, subject to explaining how that choice might be restricted under the policy. The cynics reading this might well suggest that this particular part of the agreement is already covered by the regulators and so what is the point of highlighting that SRA rules provide that the legal services provider has to already confirm any links. Or highlight that fact that terms of a policy are captured by the FCA. The Code then goes on to state that complying insurers will not enter into arrangements with third parties who they know put pressure on customers to pursue claims. In other words companies that do cold calling, texts or offers of inducements. Interestingly, the next point is that once a customer refuses the provision of legal services from the insurer then no further offers are made for the same accident. Then followed up with that the insurer will not share the customer s details believing that the company who is provided with these details will then encourage the customer to pursue a claim. What does all this tell us? Well readers will no doubt draw the conclusion that insurers have finally cottoned on to the fact that the majority of pestering that customers have faced in recent years has been driven by the exchange of details by insurers to other third parties who then ask the same client, who originally said they did not want to proceed with a claim, sometimes a reported 6 times to bring a claim. Perhaps no wonder that they were seen to have their own mouths in the trough of personal injury. The essence of the Code is all about the complying insurers making sure their own customers are aware of their rights when bringing a claim. The Code goes further on claims handling and not directing customers to arrangements where any deduction is taken from their damages. So what is the most telling element of all this? You only have to look at who hasn t signed up to the Code to draw your own conclusions, Aviva, QBE and AIG are not listed on the ABI website as signatories at the time of writing at the end of April so I doubt they will be changing their mind anytime soon. A step in the right direction for insurers about behaviour, or merely a different way of listing the elements of regulation that have to be complied with in a way a customer might understand? Perhaps the jury is better left out on this point for the minute. 16

17 The Balanced Argument The last twelve months has witnessed significant reform to the civil litigation landscape in England and Wales as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has bedded down. The aim of the LASPO changes is to ensure access to justice for personal injury claimants, but at proportionate cost. James Dalton, Head of Motor and Liability, ABI The changes are designed to assist those who have been injured to claim appropriate compensation in a timely and cost efficient way and to provide a greater degree of certainty and cost control. Insurers have long campaigned in support of these changes as part of a wider programme of reform to remove disproportionate legal costs from the civil litigation system costs which ultimately filter through to higher insurance premiums. We want to ensure that both the letter and the spirit of the rules underpinning the reforms are embedded into everyday insurer practice. As an industry that is constantly innovating, insurers will continue to provide as much support to their customers as possible and some insurers are now offering legal services, either direct to their customers or via third parties, to help them with their claims. Insurers are committed to ensuring that any actions they take in this new legal environment lead to a reduction in the number of unmeritorious or inflated personal injury claims, especially for whiplash. Some commentators have pointed the finger at insurers entering into Alternative Business Structures (ABSs) as an attempt to get around the ban on referral fees introduced by LASPO. This does not hold up to scrutiny. Those insurers that have entered into ABSs have done so to provide support to their genuinely injured customers, not to get around the referral fee ban. But if you don t accept that and to ensure good customer outcomes in a fast-changing and regularly-evolving legal environment, in February the ABI launched a voluntary Code of Practice: Support for Customers with Road Traffic Injuries: The ABI Code. The signatories to the Code are published, alongside the Code itself, on the ABI website. Under the Code insurers will: Ensure that policyholders wishing to claim are made aware of their options when considering appointing a legal services provider, including any links the insurer may have with a recommended provider, and the customer s right to choose their own. Not apply, or use firms who may apply, pressure on customers to claim, for example through cold calls. Not share customers personal information with another party knowing that it will be used to encourage the customer to claim when the customer has already said that they would not be pursuing a claim. Ask customers if they have legal expenses insurance, or other funding arrangements that may cover the cost of a claim. Aim to resolve claims wherever possible through the Claims Portal. Ensure that any third parties they may arrange or recommend to handle a claim do not increase legal costs for the at-fault insurer. The Code aims to ensure that the interests of all consumers come first - both in accessing compensation and also in making the claims system as cost efficient and effective as possible. Insurers want to give customers and other stakeholders the confidence that, in operating in the new civil justice landscape, they are working in the interests of genuinely injured claimants, of the premium paying public and for the wider public good. We believe that our new Code achieves this objective. There will be a number of personal injury lawyers who will have their doubts about whether it does. That s fine. I look forward to the launch of your proactively developed, industry Code which has at its heart the promotion of consumer protection. 17

18 The MASS Insight Magazine MASS Matters Jane Loney Executive Director MASS What matters to us is the accident victim. Through representation and education our work within the industry is key in supporting the victims of road traffic accidents and our members who work on their behalf. With over 2 decades of experience, MASS is now regarded as the leading authority for all matters pertaining to RTA PI claims. Due to our pragmatic and professional approach we are often invited to meetings and discussions with the Ministry of Justice and other relevant authorities including the Transport Select Committee, Civil Justice Committee and Solicitors Regulation Authority. In addition MASS regularly responds to the numerous consultation papers that are published. Already in 2014 we have responded to the Competition Commission on Private Motor Insurance; the MoJ on Court Fees; CJC on the Impact of the Jackson Reforms and by the end of May will be responding to the MoJ s most recent consultation on Whiplash reforms and fixed costs for medical examinations. For many years we have been working with the MoJ on the numerous reforms that have been implemented within the PI market. MASS played a fundamental role in the negotiations on the Jackson reforms and were invited to meet with Lord Justice Jackson to provide a detailed picture of the practical aspect of the RTA market and the issues faced by claimant solicitors. These are just a few examples of the representative role that MASS undertakes and an indication of how our members are given the subsequent opportunity to have their concerns raised at the highest level. Campaigning for our Members Whilst the accident victim and their right to justice is always the focus of the lobbying and campaigning that MASS does, there are many issues that affect the accident victim and their 18

19 MASS Matters Recognising the invaluable work of road safety and victim support charities, MASS is proud to support Aspire in Brian Carlin, CEO of Aspire, successfully completed a 12 hour Spinathon in April, raising nearly 4,000. After cycling approximately 320 kilometres Brian commented: Taking part in my first nonstop 12 hour Spinathon yesterday was an amazing experience, although extremely painful! I am particularly grateful to everyone who donated their money and time, and it was fantastic that so many people came down to Aspire to offer me moral support. Visit to read more and donate. MASS Chairman, Craig Budsworth, is also supporting Aspire. Craig says In June this year I m flying to the south of France to take on a stage that the Tour de France riders follow that takes in Mount Ventoux. This is a 110 km ride with the Mountain in the middle. The mountain itself means I ll be riding uphill for over 21 km (12miles) that will take about 2 hours in itself. On the downhill, I ll be reaching speeds of over 100km/hour and remember this will be on a bicycle! I d really appreciate your support. As you know they are our charity of the year and Aspire look after people with spinal cord injuries. I m honoured to sit on their grant committee so I m fully aware of exactly where the money I raise is going. You can make a donation via my page There are a couple of photos on there that may make you laugh seeing my suffering in training! And if your firm is undertaking any charity events this year then please could you bear Aspire in mind? representative. At present there appears to be relentless pressure to get solicitors out of the claims process through one way or another. One such example is the raising of the small claims limit which has been bought to the fore a number of times over the past 10 years. MASS strongly believes that such a move would be a travesty for the accident victim, leaving them to fend for themselves against insurers who have an in depth knowledge of the process and in our experience, less likely to award the full amount of compensation that is rightfully entitled. Then in recent weeks the ABI are even proposing an industry debate on there being no monetary recompense for low value RTA claims, a proposition that MASS will very robustly reject. We have campaigned tirelessly on this issue with the support of accident victims and our members and to date we have been successful in persuading the Government of the time that raising the small claims limit will be catastrophic for the accident victim and their access to justice. One of the many benefits of being a member of MASS is for individual law firms to have a voice and be represented in discussions with political and governing decision makers Through our rigorous campaigning pre and post LASPO, our lobbying activity has also put us in contact with many MP s, both on Government and Shadow benches. Once again this provides an invaluable opportunity to express the difficulties that both consumers and solicitors face with the continuing reforms that the PI market is being bombarded with. Working with the industry on Fraud is also a key objective. Fraud benefits no one and MASS is leading the way forward for industry collaboration to combat fraud through exchanging information and making it harder for fraudsters to operate. 19

20 The MASS Insight Magazine Attention all golfers... The MASS Golf Day will be held on Thursday 12th June 2014 and will return to the much loved and challenging course at the Menzies Welcombe Hotel Spa and Golf Club, Stratford upon Avon, Warwickshire. The booking forms for this popular event have now been distributed by . If you haven t received yours, please contact June at the MASS Office: Tel: or and we ll put that right! Jenny Braunton MASS Membership Co-ordinator MASS recognises the need for its members to be included and feel part of a united society. Plenty of opportunities are there for the taking so make sure you get involved! When we talk to our members about what they feel is important to them, we do get a variety of answers, but the overall values are in the same vein; MASS is a body well recognised within the industry Recommend membership to anyone involved in PI/RTA work Very helpful to meet others doing same kind of work We are all in it for the same reason to help people that s the name of the game We are a community It s a great way to be involved. There are a number of great ways you can take advantage of your MASS membership during the year and we encourage all of you to make sure you get the full benefit of belonging to such a great Society! It s all about sharing Each of MASS 12 regions hold regular meetings. This is great way for members to; Discuss current legal issues and MASS activities Pool information and knowledge Share best working practices Be updated on relevant topics by guest speakers Swap stories and local gossip! To find out what s going on in your region contact Your time to have your say Our AGM is your chance to see what your Society has been up to, both on behalf of our members and the public in general. It s always a lively affair and members are very much encouraged to share their views and opinions so make sure you come along on 6th November and add your voice! If you do only one thing Make sure you come along to our must attend event of the year our annual Conference where you will have an excellent opportunity to network with like-minded professionals and debate the challenges ahead and hear from industry specialists who will contribute their advice and opinions. 20

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