1 Linking the Industry Together January 2014 Issue 05 ISSN Complaint handling: Has the Consumer Insurance Act made any real change to customer experiences of the insurance market? Ant Gould reports Arms to rest: Clinical negligence lawyers join new Society, putting the competition aside to ensure healthy practices Changes to the costs regime are just part of the picture for us. The future is exciting and we are embracing change Amanda Illing Modern Claims Magazine January 2014 Issue 05 Charlton Grant Supported by Amanda Blanc A business should have ethics at the heart of it and as a consequence of things like PPI, we have now got extremely tough regulation - that is what we deserve for where we are now Association of Regulated Claims Management Companies A CENTURY OF PROFESSIONALISM Sponsored by E C L I P S E
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3 Introduction 03 While the New Year always provides an opportunity to ask what do we as a business want to be and how are we going to get there? the unprecedented scale of reforms in 2013 have already required that claims lawyers, experts and insurers have conducted this process already. A significant proportion of the readers I have met and spoken to in recent months have told me they have concentrated efforts into investigating the true needs of the customer to ensure their brand vision, service offering and marketing efforts are more meaningful than ever before and create a clear differentiator to the market. That s why this issue has a clear focus on identifying what the customer really, really wants (with a pan-sector response to that very issue on page 59) and an undertone of what organisations need to be healthy in 2014 onwards - ensuring they are there to protect and represent customers to offer a speedy, proportionate and meaningful claims resolution. All of our interviewees, from our cover star, Amanda Blanc, CEO of AXA insurance to Stephen Webber, President of the Society of Clinical Injury Lawyers, agree that organisations need to be in the best possible shape, armed with certainty in order to deliver high quality, expert services for customers, whether they be a legal, insurance or expert-based brand. The positive aspect of customer focused-delivery is, of course, joined by often overwhelming regulatory requirements for effective complaints handling. The two have to be balanced. Those at the front line have been working hard with both the FSA and SRA this year to ensure regulation is both meaningful and meets the needs of the consumers, which is why the Chartered Insurance Institute has conducted its own research, Ant Gould reports (page 7). Listening to the customer is one of the biggest exercises to undertake when defining brand value and vision but there are also great lessons to be learned by sharing information across the sector, as our expert columnists would attest. From the experience of referral-based experts, insurers and lawyers to the claimant clinical negligence lawyers who have downed spears to share best practice and knowledge on costs budgeting and proportionality rulings, this issue is filled to the brim with opportunities to tap into the business management and model advice from parallel operators. Of course, if you have your own thoughts, experience, best practice and procedure to to share, please let us know. Unfortunately this is my last issue as Chief Editor of Modern Claims as I am off to pastures new but I leave you in the very capable hands of Charlotte Parkinson, Group Editor It has been a great honour to be on the launch team for this fantastic magazine, now veering towards its first year in publication and to announce a fantastic Modern Claims conference line-up set for 25 March 2014 at Stamford Bridge (Chelsea FC), London, which will be chaired by Tim Oliver, CEO, Parabis Group (to book, visit I have no doubt that both the claims sector and Modern Claims will go from strength to strength in this exciting, more collaborative, if not challenging new era! Emma Waddingham, Chief Editor Modern Claims Magazine Issue 05 January 2014 ISSN Project Director Kate McKittrick Accounts Director Karl Mason Chief Editor Emma Waddingham Group Editor Charlotte Parkinson Head of Events Julia Todd Interview Editor Bippon Vinayak Advertising Rachael Pearson Production Sarah Peel Design Richard Berry Contact t: e: w: Modern Claims Magazine is published by Charlton Grant Ltd All material is copyrighted both written and illustrated. Reproduction in part or whole is strictly forbidden without the written permission of the publisher. All images and information is collated from extensive research and along with advertisements is published in good faith. Although the author and publisher have made every effort to ensure that the information in this publication was correct at press time, the author and publisher do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.
4 04 Contents CONTENTS Intro & THE News 7 Ant Gould talks news This year s Chartered Insurance Institute Underwriting Faculty New Generation Group decided to test if the Consumer Insurance Act has made any difference to customer experience, as Ant Gould reports The INTERVIEWS 11 Amanda Blanc, AXA The CEO of AXA s Commercial Lines and Personal Intermediary speaks to Charlotte Parkinson, Modern Claims about managing broker relationships, impact of change on the consumer and the image of the Insurer in the claims market. 14 David Johnson, FOIL Emma Waddingham speaks to the new President of the Forum of Insurance Lawyers (FOIL) about the lay of the land for defendant firms post-jackson and what the now more vocal organisation has planned for another reform-filled year ahead. 17 Amanda Illing, Hardwicke Despite being one of the most flexible creatures in the legal claims sector, the modern Bar now faces increasing competition with their costs and role squeezed even further in civil litigation, so how do chambers react? Emma Waddingham speaks to the awardwinning Chief Executive of Hardwicke barristers chambers, Amanda Illing, to find out. 20 Stephen Webber, Society of Clinical Injury Lawyers Emma Waddingham interviews the President of the Society of Clinical Injury Lawyers (SCIL), a new organisation designed to arm claimant clinical negligence lawyers with the tools, techniques and best practice to support their business models and, ultimately, claimants in an increasingly uncertain market Editorial Columnists Alan Nesbit Managing Partner Nesbit Law Group & Chairman, ARC Alan Strange Underwriting Director LAMP Group Limited Andy Watson Chief Executive Ageas Andy Whatmough Director S & G Response Ant Gould Director of Faculties Chartered Insurance Institute Anthony Hughes Solicitor Bippon Vinayak Chairman & CEO Doctors Chambers Bruce Bourne Bruce Bourne Associates Catherine Smith Operations Director Wolf Law Solicitors Chris Marden Director Keystone Craig Budsworth Chair, MASS & RTA Partner, Glaysiers Darren Gower Marketing Director Eclipse Legal Systems David Johnson President FOIL David J Williams Managing Director, Underwriting AXA Insurance Dez Derry CEO mmadigital Donna Scully Partner Carpenters Eddie Longworth Sales & Marketing Director Parabis Claims Solutions Howard Dean Partner Keoghs LLP Jim Toole Operations Director First Response Law John Latter ACII Director of Technical Centre, UK Claims Zurich Insurance plc Jonathan Appleby Head of Business Development Lyons Davidson Martin Andrews Director General Credit Hire Organisation Michael Davidson Head of Strategy & Sales Goldsmith Williams Solicitors 29 Nicholas Gordon Consultant For Mills & Reeve LLP On behalf of Willis UK Retail Nik Ellis Managing Director Laird Assessors Patrick McGuire Partner Thompsons Solicitors Peter Horton Chief Operating Officer - GI LV Peter Parry Managing Director Independent Accident Investigations Phill Witterick Commercial Director Carpenters PJ Kirby QC Barrister Hardwicke Rob Cummings Policy Advisor, Motor ABI Russell Thompson CEO Eclipse Legal Systems Steve Rowley Business Development Manager Allianz Legal Protection Tony Rand CEO Vamco Zoe Holland Managing Director ZEBRA Legal Consulting
5 Contents The Opinions 24 Sector Soapbox: fixing the system Craig Budsworth, MASS & Rob Cummings, ABI 27 Costs specialists: boom or bust David Johnson, FOIL 27 Next wave of reform Peter Horton, LV= 29 Costs Chaos John Latter, Zurich Insurance & Howard Dean, Keoghs LLP 29 A question of cover Chris Marden, Keystone 31 Real brand value Russell Thomson, Eclipse Legal Systems 31 Costing the case: Is the future any clearer? PJ Kirby QC, Hardwicke 33 Wise advice Peter Parry, Independent Accident Investigations 33 A tool for proportionality Bruce Bourne, Bruce Bourne Associates 35 New era referrals Nik Ellis, Laird Assessors 35 Digital contenders Dez Derry, mmadigital 37 A lesson in protection Paul Fox, XL Group 37 DBA on demand Nicholas Gordon, Mills & Reeve LLP 39 Bespoke demands Alan Strange, LAMP Insurance Limited 39 A shrinking market Tony Rand, Vamco 41 Who do you think you are kidding, Mr Witness Trevor Gilbert, CEO, Witness Box (a legal training firm) 41 Is the underdog protector age over? David Williams, AXA Insurance The Features 44 Playing ball For the everyday consumer, credit hire can offer a much-needed lifeline in difficult times and, as Martin Andrews explores, it s not just footballers reaping the benefits. 47 Post LASPO value? Steve Rowley takes an in-depth look at recent developments in motor legal expense insurance and questions how the customer will be impacted in the aftermath of reform. 49 Man in tights Scottish independence could offer a chance to continue to lead the way for the rest of the UK in EL claims and revise the Enterprise Act for Scotland but, asks Patrick McGuire, has it recognised the opportunity? 51 Tools of the trade Modern Claims asked its group of legal experts how, in the wildly changing claims landscape, do lawyers stay on top of driving their business plan forward and what tools do they need in order to attract investment and keep staff morale high. 57 Choose wisely In a post LASPO world, brokers have an array of choices before them, Phill Witterick explains why personal lines brokers now need to be ever more diligent when choosing the right claims management provider. 59 What the client really, really wants... How do insurance policy and legal claims specialists find out what really matters to customers and, importantly, what do they do with that information? Emma Waddingham reports mins with Jonathan Appleby, Lyons Davidson 62 Enabling excellence How niche PI firm, AMV Law, has utilised Eclipse s Proclaim Practice Management solution to achieve and build on its award-winning excellence status
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7 Ant talks news 07 Ant talks News In April the Consumer Insurance Act was introduced as part of an initiative that (in the words of the Association of British Insurers) would provide customers taking out insurance products with added peace of mind that their claims will not be declined if they unknowingly fail to disclose information to their insurer. This year s Chartered Insurance Institute Underwriting Faculty New Generation Group decided to test if the Act has made any difference to customer experience, as Ant Gould reports. The insurance industry is always quick to point out that its reputation amongst the general public and its coverage in the wider consumer media is unfair, insisting that in the vast majority of cases customers are very satisfied with the service they have bought. However, the fact remains - no matter what your view of the insurance industry - that there is room for improvement, particularly in the area of personal lines. That s if the number of complaints being upheld by the Financial Ombudsman Service (FOS) is anything to go by. In April 2013, the Consumer Insurance (Disclosure and Representations) Act 2012 (CIA), produced after a lengthy consultation process, came into effect. It had the aim of putting the focus on providers of consumer general insurance products to clearly deliver clarity of terms to their customers and be justified where issues of non-disclosure arise. As the Association of British Insurers, said: We want customers to take out insurance policies with the confidence In the main, consumers are not complaining about problems the CIA is designed to address, citing that of all the decisions reviewed, only 17% were related to matters being tackled by the provisions of the Act only half of the complaints reviewed would be affected by the new legislation The Consumer Insurance Act will: Place a duty on insurers to ask customers all relevant questions about the specific information required at point of sale Provide legal protection for customers that claims will not be declined for non-disclosure unless information is deliberately or carelessly withheld or misleading Apply to all personal insurance, such as home, car and travel insurance, life, critical illness and income protection insurance, health and pension annuities. Apply no matter how insurance is purchased, be it online, by telephone or face to face. Source: Association of British Insurers that they are covered. By placing a legal duty on insurers to ask customers all relevant questions at point of sale, people will know exactly what they need to disclose upfront. Reputation management The 2013 Chartered Insurance Institute Underwriting Faculty New Generation group (made up of eight individuals from across the insurance industry), who as part of the year long programme are asked to run a project of their own choosing designed to change something for the better, spent their year looking at the impact of the CIA. It was the group s aim to understand if, in its words, the CIA goes far enough in terms of improving customer experience. Before it undertook the research, the group firmly believed the Act presented an opportunity for substantial positive change for consumers or that there is a very real risk the industry would rest on its laurels, so that consumer perceptions wouldn t change. As the group report says: If the industry gets this right, customer satisfaction will rise, costs in dealing with complaints will fall and loss ratios will fall. Analysing the Act To try and test the effectiveness of the Act, the group
8 08 Ant talks news decided to look at general insurance complaints (non payment protection insurance) and whether the trend towards an increase in referrals to the FOS - the last point of appeal for consumers when a disagreement occurs showed any signs of being reversed following the changes. The group s final report, due to be published on the CII website (www.cii.co.uk) in January, tries to gauge what has changed for consumers and what has changed for insurers in the wake of the Act. It also tries to evaluate if the CIA worked as originally envisaged and to identify what else the insurance industry could do to assist clarity and certainty for consumers. Over the summer, the group analysed the complaint data judgments published by the FOS for the period from the 1 April to 8 August. The sample was limited - as the data contains only cases that reach an FOS decision stage and the FOS has also not published data from cases prior to 1 April Equally, there is also of course often a significant delay between the initial consumer claim and an eventual Final Adjudication decision. However, despite the limitations of the data available, the group believes that over two years on from the drafting of the impact assessment and seven months on from the implementation of the Act, it is possible to make some preliminary judgements about the success of the CIA in terms of its delivery against its stated goals. Meeting the redress needs of consumers? The group s main finding was that, in the main, consumers are not complaining about problems the CIA is designed to address, citing that of all the decisions reviewed, only 17% were related to matters being tackled by the provisions of the Act. It adds that even in those areas where the CIA would be expected to make a real difference non-disclosure and misrepresentation only half of the complaints reviewed would be affected by the new legislation. Perhaps not surprisingly, by far the greatest proportion of complaints arose from Remedy of Insurer ; that is, how the insurer chose to settle a claim. Whilst it might not be surprising that most complaints arise at the claims stage the moment of truth for customer and insurer alike - it Summary of the CII Underwriting Faculty New Generation Group findings Of all the FOS decisions reviewed, only 17% related to matters being tackled by the provisions of the CIA Even in those areas where the CIA would be expected to make a real difference non-disclosure and misrepresentation only half of complaints reviewed would be affected by the new legislation. The biggest proportion of cases related to issues arising at the claims stage CIA has had negligible effect on these levels so far Perhaps not surprisingly, by far the greatest proportion of complaints arose from Remedy of Insurer ; that is, how the insurer chose to settle a claim it is perhaps disappointing that only 3% of these complaints could be addressed by the Act is perhaps disappointing that only 3% of these complaints could be addressed by the Act. As the group s report states: On the basis of our data, the inevitable conclusion is that if insurers want to drive down complaints, they need to be looking at issues beyond CIA compliance. The group adds that the second main benefit of the Act was its intended impact on the customer experience. It was assumed the Act would bring clarity to the law; insurers would know when the Ombudsman was likely to find in favour of the complainant and would settle complaints before they reached the FOS. This would lead to more satisfied customers and, ultimately, to increased sales. Unfortunately the group s research suggests that at this early stage at least, these ambitions are being frustrated. Their impact assessment suggests that the proportion of complaints upheld by the FOS should be the yardstick for this objective if the law is clear, and insurers know when they are in the wrong, then merited complaints should be resolved long before they reach the FOS. On the group s analysis, complaints to the FOS about CIA related matters were more likely to be upheld than complaints about non-cia related issues (56% upheld rate versus 44%). The group also pointed out that although the Act has only been in force since April 2013, insurers have been aware of its provisions for sufficient time that unfamiliarity cannot account for this. Reform fit for purpose If the intention of the Act was to provide a definitive basis for determining complaints, then the group believes it is clear that there is still considerable room for improvement: If insurers really want to make inroads into the number of consumer complaints they will need to consider a much more radical set of reforms. Having analysed the FOS data and looked at the workings of the CIA, the group put together a range of recommendations for the insurance industry to consider. These are explained in more detail in the report but some of their recommendations include that the definition of
9 Ant talks news 09 Consumer should be harmonised across the CIA, the Financial Conduct Authority and the FOS - including a consistent small to medium-sized enterprise (SME) customer definition. Another recommendation is focused on insurers internal structures and processes applied in particular to the interpretation of evidence - which the group believe, if addressed, would mean a higher than average likelihood of a good solution for insurer and customer alike. In the final analysis, the group s view is that, to date at least and based on the only data available, the CIA has had limited consumer impact and that in the broader perspective the Act itself did not go far enough. The report is not a blueprint of what the insurance industry should do to fill this gap but it does have some useful recommendations and challenges for insurance professions to wrestle with. That aside, perhaps the most heartening aspect of their report is the very fact that the future underwriting leaders of tomorrow are already putting customer outcomes at the very heart of their thinking good news for everyone. Ant Gould is the Director of Faculties at the Chartered Insurance Institute (CII) CII Underwriting Faculty New Generation Group Members Richard Sharples ACII Chartered Insurer: NFU Mutual (Regional Senior Technician, Underwriting) Chris Sendall ACII Chartered Insurer: Ecclesiastical (Casualty Underwriting Consultant) Chris Luscombe ACII Chartered insurer: Allianz (Manager, Property Underwriting) Patricia Tzortzopolous Dip CII: QBE (Senior Compliance Manager, Europe & International) Blair Arnot ACII: RSA (Portfolio Management Liability, Construction & Engineering) Rob Forshaw Cert CII: Ageas (Household Schemes Manager - Brokers) Ian Stammars Dip CII: LV (Senior Home Underwriter) Adam Hyman Zurich Municipal (Technical Underwriter) Trust Forths to come up trumps for you this year. Whatever hand you re dealt in 2014, remember you can always rely on Forths for nothing but the very best advice and expertise on Personal Injury cases of all sizes. Contact us today and discover how Forths can make a real difference to the total claimed in any action. Leeds: Manchester:
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11 Interview with... Amanda Blanc 11 Interview with... Amanda Blanc The CEO of AXA s Commercial Lines and Personal Intermediary speaks to Charlotte Parkinson, Modern Claims about managing broker relationships, impact of change on the consumer and the image of the Insurer in the claims market. QThe ABI has recently published a guide for small-medium sized enterprises (SMEs) on Employers Liability and Public Liability insurance. Will trends in these cases continue following reform? AReally, it is too early to say but what is important is that SMEs have access to this kind of information. Too often in the past they have not known enough to protect themselves and the work by the ABI is really vital. It is so important that, as a profession, we make the expertise that we have readily available to our end users and SME clients. At AXA, we have focused a huge amount on this in the last 24 months. The most precarious time for SMEs and when they need the most support is during their development and we are here to help them. QHow important is it for AXA as a brand and as an organisation to manage broker relationships. How is AXA currently doing this? AIf we didn t manage our broker relationships, we wouldn t have a business. Around 90% of the business that I look after is intermediated and it is so important for us to have good relationships with the broker bodies. We manage these relationships in lots of different ways; we have extended our branch network over the last few years and we now have 11 branches in total. We empower these structures by ensuring local brokers have access to decision makers at the local branches, meaning decisions can be made quickly and with certainty. We help the brokers to grow their business and grow their people and we give them lots of marketing support in order to do this (building websites for example). We have also undertaken a huge investment in management training for brokers in order to give them the opportunity to grow their own people. Not every broker wants to see us all the time and for those who don t, we have made it easy for them to do business with us online. We try to make decisions quickly, be upfront and honest and if we can t do something we say so because the worst thing is a long no, the only way we can do business is by being open. QWhat does BIBA offer its members and the consumer in terms of feedback, support and advice and how important are organisations like BIBA and the CII to the wider Insurance industry? AObviously, I am slightly biased where the CII is concerned but BIBA has done a fantastic job over the last five years or so. The BIBA has built the profile of the broking community and it has As an insurance profession, we need to be a lot clearer with our communications, full stop I do agree that we have a significant issue with some of the claims management companies and I would say that this is inevitable given what the industry has just come through now got to the point where the Government will look to consult BIBA before making major changes; that can only be a good thing. I do think the Government genuinely listens to BIBA members now, as we have seen with the recent consultation on the changes. BIBA has now reached a stage where it has an association that does what its members want it to; some associations do forget that that is their purpose. BIBA has also done a very good job of making the public aware of specialist brokers and the handling of non-standard risks. As a profession, we are very lucky to have a very strong CII in terms of route and branch operations. Last year, when I was President, I visited lots of the local branches and I was really impressed with how engaged and passionate they were. The professionalism initiative has been great, because, although not everybody agrees with it, there is a debate on it. If there is a debate it shows people are getting passionate about professionalism and I think that is really important, at AXA, we certainly have this debate on the agenda. QHow do you qualify customer satisfaction (other than an increase in policies sold), how important is advertising in terms of positioning yourselves as a customer-facing brand? AWe have basic tools for measuring customer satisfaction, like looking at the length of time taken to settle a claim and how long it takes to insure the policy. We also have two other key measures, one of which is Customer Scope, which is an AXA wide
12 12 Interview with... Amanda Blanc There has been countless research which shows that companies, who behave in a moral way, outperform peer-groups, maybe not in the short term but certainly in the medium to long term; companies that are exploitative will not survive group initiative that provides methods of independently validating customer satisfaction. Another method we use, Investors in Customers, was started about two years ago. The process is conducted by an external organisation that comes in and talks to customers, staff and the brokers and comes up with an overall satisfaction rating. We receive a star rating out of three for this and while most financial services businesses do not do well with this, we have improved our rating significantly from last year and are now at two stars; obviously our aim is to get to three but this takes time. As far as our marketing is concerned, it is very important to us, even in an intermediated business because if the customer is seeing an AXA branded campaign, they will be more comfortable with that. A brand campaign on its own is never effective; it must be supported with specific advertising to back up the message of the wider campaign and we have done this with our most recent little things mean a lot campaign. Amanda Blanc AXA Insurance, CEO (Commercial Lines & Personal Intermediary) Born 1967, Amanda was appointed to the Board in March 2011 as Chief Executive Officer, AXA Insurance Commercial Lines. Following a review of the business in July 2012, her remit was broadened and she was appointed Chief Executive Officer, AXA Commercial Lines and Personal Intermediary. This is Amanda s second career within AXA where she was previously Regional Director in the Commercial Lines Intermediary business from 1999 to Amanda rejoined AXA UK from Towergate where she had worked since 2006 as Deputy Group Chief Executive Officer, with responsibility for the leadership of their retail broking operations including regional offices, networks and e-trading businesses. Prior to joining Towergate, Amanda was Customer and Services Director at Groupama for 2 years and previously held posts at Norwich Union. In addition to her CEO role, Amanda also sits on AXA s Global Property and Casualty Board and has a non-executive position on the board of AXA Art Insurance Limited. Amanda graduated from the University of Liverpool and has an MBA from the University of Leeds. In 2008, she was voted the winner of Women in the City Award. In addition, she is a Chartered Insurer and served as President of the Chartered Insurance Institute from July 2012 July Amanda is married with 2 daughters and lives in Hampshire.
13 Interview with... Amanda Blanc 13 There have been cases, not just in the case of PPI, where products have been sold that shouldn t have been and we have all got to be big enough to say, that shouldn t have happened and it won t happen again QThe insurance industry has recently received a lot of negative press following extensive reform to the wider claims industry. How and what is AXA doing to rebuild broken relationships and trust with solicitors and consumers? AI wouldn t agree that we have a problem with customer relationships; I do agree that we have a significant issue with some of the claims management companies and I would say that this is inevitable given what the industry has just come through. As an insurance profession, we need to be a lot clearer with our communications, full stop. Insurance policies tend to be over-complicated and when we have a Surge Event, as we did recently in the UK, we know that a high number of claims will follow. The reason insurance is there is for unforeseeable events, not for things that are preventable but as a profession we need to be much better at explaining, at the point of sale, what is and what is not covered. This would clear the view of some customers that we try to avoid claims which, clearly, we do not do. In that way, while I don t think we have broken relationships with customers, we do need to build confidence. QYou have talked of a crusade of morality in the insurance industry, how important is this to you and AXA or is it simply about the bottom line? ATo me, this is fundamental, as a CEO, I have a duty to the shareholders to deliver return and that is clear but I do not accept that that return should be delivered at all costs. I firmly believe that I need to have an equal duty to employees and also to customers. For employees, that duty is to give them the necessary training and development and for the customers, that duty is to give them the product and service that they actually need. There has been countless research which shows that companies, who behave in a moral way outperform peer-groups, maybe not in the short term but certainly in the medium to long term; companies that are exploitative will not survive. With the rise of social media, a company s performance is so available online that people easily find out about bad service. QHas a personal/local approach been lost/damaged following reform? AI don t think that we have lost a personal or local approach; the Jackson reforms were absolutely critical and couldn t have come soon enough as far as we were concerned. With customers, we do need to ensure that we operate at a local level but also ensure the business is as profitable as possible. QWhat are insurers doing to combat the recent and ongoing PPI scandal and do you think the insurance industry as a whole has acted in an unprofessional manner with regards to this? Do you think government and regulatory bodies are doing enough to stop this? AInsurers did not create the PPI scandal and on the whole it was not the insurers who behaved unprofessionally here, it was the banks. The banks miss-sold the products but the insurance industry does have to take its share of the blame because ultimately it was us that provided the capacity for it to happen. There have been instances, not just in the case of PPI, where A business should have ethics at the heart of it and as a consequence of things like PPI, we have now got extremely tough regulation and that is what we deserve for where we are now products have been sold that shouldn t have been and we have all got to be big enough to say, that shouldn t have happened and it won t happen again. The CII has ethical guidelines but a business should have ethics at the heart of it and, as a consequence of things like PPI, we now have extremely tough regulation - which is what we deserve for what has happened in the past. QWhat are the differences/ similarities of how AXA works with its commercial and personal lines brokers? Personal lines and commercial lines were joined at the start of this year, why did you decide to make this decision? AThere is no difference at all in how we deal with our commercial and personal lines brokers, the strategy and essence of what we are doing is the same. Clearly, there are differences with the products that they sell but since the start of the year we have had that one touch point with them. We have made it a lot less complicated and there is now a personal lines expert in every branch. It has been a very good year for pulling all our services together and next year will be when we start to place some numbers around that. QHow have price comparison/ aggregator websites impacted the insurance industry in terms of competition and consumer knowledge? AQuite rightly, it has made consumers more demanding and from their perspective, it is the perfect solution in that they have options delivered to them all on one page. The downside is that these websites appear to be largely price focused, without necessarily highlighting any differences in cover. With home insurance in particular, there can be very wide ranges of cover and it is important that customers understand what they are buying; work certainly needs to be done here. From a consumer perspective though, anything that demystifies the insurance industry has got to be a good thing and whether or not insurers like it is something we need to get over.
14 14 Interview with David Johnson Interview with... David Johnson Emma Waddingham speaks to the new President of the Forum of Insurance Lawyers (FOIL) and Partner at Weightmans, about how a lifetime of meeting insurer panel fixed fee requirements has put defendant firms ahead of the game post-jackson and what the more vocal organisation has planned for the year (filled with further reforms) ahead. Q Congratulations on your new role as President of FOIL. What have the last 12 months brought for members are things as shaky in the defendant lawyers camp as in the claimant? A The short answer is that, 12 months on there has been an awful lot of change. In the dayto-day, Jackson has dominated but there are many elements that are a slow burn in terms of outcome. CPR 3.91 has had a more immediate effect, enhanced by the Mitchell judgment at the end of However, Jackson is also set against a background of ABS, a model being embraced by the claims industry in earnest. Combined, the scale of change is quite considerable, for all practitioners. Are things as shaky for defendant lawyers? The impact on the defendant side has been less significant than for those on the claimant side of the fence. There are fundamental changes for claimant firms to address and quickly, whereas defendant firms have always had to adapt their systems and business models to compete, ensuring fixed fees and efficiencies for insurer clients. Defendants were a fair way down the road already, before Jackson. Claimant firms now have to play catch up, adapt in similar ways but at a much faster pace. The impact for claimant firms is far more dramatic than for defendants. Q Almost 10 months on from the Jackson reforms and there is still great uncertainty about the future of claims. Do you expect practice / procedure and process to be clearer in the months ahead? A I think that clarity is key having witnessed the judgment in Mitchell. Some camps have suggested there will be a more Draconian approach to procedure, others a more permissive one. In reality, many are left not knowing where they stand - this uncertainty is no good for anyone. Mitchell addressed some of the vagueness around CPR 3.9 but there are other issues on the horizon regarding dishonestly on QOCS. This, in my view, is highly likely to give rise to satellite litigation, as are issues surrounding costs budgeting. Costs budgeting is one of the most important areas of change that is only just beginning to be seen in day-to-day practice. Lawyers are still finding their way with it so there s still a way to go Q What support has FOIL offered in the past year that has differed from previous years (especially in light of the reforms)? A Two of FOILs stated goals are promoting best practice and ensuring members are up to date. With Jackson, this has been one and the same thing. FOIL members have received some excellent update material and I am looking to maintain that provision. Another pivotal role of FOIL recently has been in helping to shape the reforms, a process that is by no means at an end. What has been different in the last 12 to 18 months for FOIL has been this contributory role during the changes, to offer a strategy for the shaping of the reforms, which we now intend to push forwards for several years. Over the past two years we have demonstrated FOIL s Defendants were a fair way down the road already, before Jackson. Claimant firms now have to play catch up, adapt in similar ways but at a much faster pace. The impact for claimant firms is far more dramatic than for defendants
15 Interview with David Johnson 15 It is very easy to see claims and procedure as simply defined by others, something for defendants to have to comply with on behalf of clients. The reforms gave FOIL the opportunity to go beyond that and help shape procedure ability to be the go-to organisation for the defendant lawyers perspective. Giving evidence to the Transport Select Committee on the whiplash consultation was a mark of FOIL s current standing. We will continue to look to contribute and help shape the changes that occur in the year ahead. Q What recent reforms? A I does FOIL mean to you? Has it changed along with don t think the reforms have, for instance, driven the progress of FOIL. It was in existence during the Wolfe reforms but it was however a very different organisation. It is very easy to see claims and procedure as simply defined by others, something for defendants to have to comply with on behalf of clients. The reforms gave FOIL the opportunity to go beyond that and help shape procedure, to offer its view on what is right and what s wrong with the system. Over time, FOIL has worked to give a voice to defendant lawyers, formalising its structure and ability to do in recent years with the appointment of a permanent CEO and information officer. In addition, FOIL now has an expanded budget, allowing the organisation to move on from its former volunteer-run structure to one with a more professional footing. Q What is the core focus for your presidential year? A I think the agenda, to some extent, is set by developments on the horizon. Satellite litigation, as I have already mentioned, is going to be keeping people busy and we need to ensure members are kept up to pace with the changes that affect them in their day-to-day practice as well as understanding the risk issues. The Ministry of Justice follow-up to whiplash is going to be very important in the coming year. FOIL is going to want to have a seat at the table to help shape that process, to ensure unintentional consequences are kept to a minimum. The devil will very much be in the detail in this particular issue. There are also internal issues to focus on. For example, I don t think that FOIL has always demonstrated its achievements and value to members to the extent it could have done. I will take steps to rectify that. All the recent changes see the claimant and defendant communities and their respective business models into a position where they are assimilate to a far greater extent. Both communities face similar concerns in term of efficiencies. With fixed costs on the claimant side for significant bodies of work, claimant firms are going to face an imperative to work more efficiently. Defendant law firms have faced this for some time. That presents a greater opportunity for FOIL to work closer together with other representative bodies, the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society in particular. Q How have ABS Joint Ventures between historically claimant law firms and insurers such as NewLaw and Ageas and broker, the AA changed the goalposts for defendant lawyers. While contested work is still litigated by defendants, do the JVs blur the line for practitioners? Are there concerns these JV arrangements may lead to separate companies being set up to handle traditionally defendant work? Also, why have we not yet seen a wealth of ABS JVs established to handle claims where liability is contested is this because the panel process is working? A The emergence of some of these JVs, coming as they did so closely after the Jackson reforms took effect, along with the ban on referral fees, were widely interpreted as a way around the reforms. I think there s a recognition that the ABS model is something insurers might consider however, defendants are vigilant and ready to react to this potential situation. The move for insurers towards JV is not seen as an inevitable or as something they will see as necessarily attractive. Neither is the competitive element an entirely new concern for defendant firms. ABSs are a new concept but defendant lawyers have always faced the possibility of insurers developing their own in-house teams. This is not entirely a dissimilar prospect. Historically, insurers have been more inclined to outsource work than to keep it in-house. They do this to reduce overheads, be more flexible in determining who carries out their work and outsourcing also promotes competition for work. It also helps to maintain standards of service amongst defendant lawyers. For an insurer, taking ownership of a law firm will give rise to challenges and there may be some negative impacts from the insurers perspective, mainly as these models don t promote the outsourcing benefits previously outlined. Q What impact will the government s response to the TSC report (i.e. its proposal to ban pre-medical offers) have on the defendant litigation process, settlements and, ultimately, cost? A Pre-med offers are portrayed as something insurers have come up with as a view to undercompensating claimants. I don t think that s the case. The vast majority of cases where pre-med offers are used look to avoid claimant lawyers costs they are used in cases where these costs rack up quickly and often exceed the damages value of the claim. We don t yet know whether pre-med offers will be addressed but it may be that the prevalence of pre-med offers diminishes as the introduction of fixed price costs takes effect. Q Finally, does the recent ruling in Mitchell mean a return to more tactical litigation and will we see a rise in satellite litigation, as predicted by many in the past few days? A I think in some instances we will see tactical litigation and the principle in Mitchell used as a weapon against opponents. In other cases you may see it lead to a greater degree of cooperation and pragmatism between litigants, who recognise there will be challenges for both parties during the life of any litigation. They may recognise that working together may, on occasion, represent the safer option. 1. Relief from sanctions
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17 Interview with... Amanda Illing 17 Interview with... Amanda Illing Despite being one of the most flexible creatures in the legal claims sector, the modern Bar now faces increasing competition with their costs and role squeezed even further in civil litigation, so how do chambers react? Emma Waddingham speaks to the award-winning Chief Executive of Hardwicke barristers chambers, Amanda Illing, to find out. Q There has been a fair deal of talk that the Bar is even further behind solicitors in the bid to reorganise, restructure and meet new market conditions in light of the Jackson reforms especially in terms of looking to meet cost conditions. Is this a fair assessment? Can the Bar really move forwards until the dust has settled or can they be more proactive in their approach to working with customers in the new claims landscape? A Many barristers and their chambers indeed seem oblivious to the need to change the way they do business they are already struggling and are unlikely to survive. Others, such as Hardwicke, where I am CEO, have long seen the need to innovate and adapt so that we can best meet the needs of our current and future customers. Changes to the costs regime are just part of the picture for us. The future is exciting and we are embracing change. Q Which section of the Bar is most at risk in the new claims landscape? Those at the lower end of chambers or those with, say, five years plus call who have started to build a specialist practice but who might not have so much work readily available to them? What has Hardwicke put in place to support at risk barristers or is it inevitable they will diversify? A The at risk barristers are those who take a business as usual approach, unwilling or unable to adapt, whether just starting their careers or long-established. At Hardwicke, we recognise that different approaches will be needed by different people, depending on their particular market specialism. The common themes, however, include a closer focus on improving relationships with clients, flexibility in working to meet their needs, and charging approaches which suit the particular client and the particular case. We also place a real premium on providing a complete service, from the first or phone call and from everyone involved whether it s the barristers actually providing legal advice or representation The traditional bar has resisted panels and panel appointments at their peril. They hang on to the notion of spot instructions coming from a solicitor acting for a single client. For us, that remains an important part of the mix Amanda Illing, Chief Executive, Hardwicke Amanda joined Hardwicke in July 2009, after nine years as the Practice Director at Matrix. Her role is to develop business and long-lasting relationships with clients. She takes responsibility for the career development of the barristers at Hardwicke, and her staff team. She is committed to meeting clients needs and providing solutions to engaging the right barrister for the right client/case, and working out fee structures to suit. Amanda was previously the Private Secretary to the Director of Public Prosecutions and a caseworker in the Crown Prosecution Service, handling cases such as the appeal of the Birmingham Six, and the first corporate manslaughter prosecution following the sinking of the Herald of Free Enterprise. Amanda was named the Eclipse Proclaim Modern Law Awards 2013, Non-Lawyer of the Year, is a Chartered Member of the Chartered Institute of Personnel and Development, a trustee of the Public Law Project (PLP) and a trustee of the London Legal Support Trust (LLST).
18 18 Interview with... Amanda Illing For us, closer working with clients, particularly larger clients, has included secondment of barristers into client organisations (including law firms, insurers, litigation funders and industry clients) to meet their longer term (but nonetheless temporary) work needs, as well as other cost-effective ways of working. or those working with them to ensure the client gets what they need. For us, closer working with clients, particularly larger clients, has included secondment of barristers into client organisations (including law firms, insurers, litigation funders and industry clients) to meet their longer term (but nonetheless temporary) work needs, as well as other cost-effective ways of working. Q How has the rise in the number of panel appointments across the corporate customer side of claims changed the nature of business development and customer care at the Bar? Are barristers more inclined now to see themselves as part of a bigger picture brand and champion all, rather than (as sometimes, even unintentionally, happens) just their own expertise when networking? A The traditional bar has resisted panels and panel appointments at their peril. They hang on to the notion of spot instructions coming from a solicitor acting for a single client. For us, that remains an important part of the mix. But, increasingly, we have a team focus, bringing together a group of barristers chosen for their complementary skills and expertise to work alongside client teams. Increasingly, the primary relationship is organisation to organisation, rather than as used always to be the case individual to individual. Being on panels is now a core and vital part of our business activities. Q Is the future bright or bleak for barristers and chambers in the claims industry and what sets the good ones apart from the rest? A The claims industry is changing, fast. Many barristers will not survive in chambers and will consider going in-house or setting up alternative business structures of their own. However, those barristers in chambers who offer high levels of legal expertise and advocacy as part of a flexible, client-focused and modern service can always thrive. For us, success means meeting our clients legal needs in a way that best suits them. Q Direct Access has brought its own plethora of business model and marketing problems. Is the Bar suited to the direct access route for personal injury / work-induced injuries and illness and clinical negligence claims? If not, why? If so, how do you juggle the needs of DA customers and the expectations of solicitors? A For many, direct access (whether instruction direct from corporate clients, insurers, or public access from members of the public) has seemed like a threat. For us, it has been an opportunity providing a new way of meeting client needs but not in all cases. We believe strongly in a mixed economy with instructions through solicitors always the core of our business. For us the priority is providing the service the client wants, on time, at a high quality and on the right financial basis, whatever the precise mechanism of instruction. Indeed, the mechanism of instruction will often evolve through the case, with a direct instruction client deciding that a solicitor may also be We believe strongly in a mixed economy with instructions through solicitors always the core of our business. For us the priority is providing the service the client wants, on time, at a high quality and on the right financial basis, whatever the precise mechanism of instruction needed as the case becomes more complex then we can help them to decide who they might instruct as part of their wider legal team. Q What does the historically referral-based Bar structure have to offer the wider claims arena (solicitors, insurers, brokers, etc.) about customer care and relationships as well as the need to cross-sell / cross-refer customers to other departments? A The traditional referral bar structure (with its focus on oneto-one relationships between barrister and instructing solicitor) is still best for some cases. It can be flexible and light-footed, particularly for simple / short-lived cases or where clarity, independence and objectivity of bringing in a high quality lawyer from outside may be required. Yet the more complex cases or where corporate clients (such as insurers) have multiple cases, are often best-served by a broader-based longerterm business relationship involving bespoke teams of legal experts. Q How has civil procedure reform, joined by new entrants to market such as Riverview Law and other ABSs now looking to incorporate barristers into their onestop-shop fold, changed the role / direction and status of non-lawyers in chambers? (i.e. the need to become more commercially-minded and bring in as many efficiency-driven processes as possible to streamline the back office functions, therefore, reduced costs). A One stop shops are an important new part of the legal market. But most customers particularly business customers still want the flexibility of putting together their own team of solicitors and barristers chosen to meet the needs of the situation, rather than simply accepting the package that is presented to them. Also, of course, many corporate clients want direct access to legal expertise (whether
19 Interview with... Amanda Illing 19 Amanda Illing was named Non-Lawyer of the Year at the first Eclipse Proclaim Modern Law Awards 2013, suggesting that management vision and leadership at the Bar is stronger now than ever before. Many barristers will not survive in chambers and will consider going in-house or setting up alternative business structures of their own. However, those barristers in chambers who offer high levels of legal expertise and advocacy as part of a flexible, client-focused and modern service can always thrive legal advice or advocacy) offered by barristers without the need for the litigation input which traditionally comes from solicitors - or where they have inhouse litigation expertise of their own. Q Do you envisage the Bar moving towards an ABS offering for some customer areas (such as defendant claims work) in order to compete for panel places in the future? What buy-in does this require in chambers and are barristers ready for such a move if necessary? A What matters is the service we provide to our clients. Our business structure should enable that, not determine it. For many barristers, new structures and ways of working are seen as a threat. At Hardwicke we remain open-minded and ready to adapt to the opportunities they present, as the need arises. The opportunities for anyone unwilling to consider change will become increasingly limited. Q Being named Non-lawyer of the year at the Eclipse Proclaim Modern Law Awards 2013 was a great achievement, especially as most commentators (and often, the Bar itself) would argue the Bar is less likely to embrace change than in other areas of the legal industry. What has helped you to innovate services and potentially the vision for chambers and how will this be driven forwards to carve an even more solid foothold in the claims arena? A I have spent 25 years in the legal industry, part in chambers, part not, but all in times of organisational change. I am now lucky enough to be at Hardwicke with its clear mission to innovate and remain at the forefront of delivering services to its clients, particularly in the claims area. We have a great team of lawyers and non-lawyers within an organisation committed to being flexible as new market challenges and opportunities emerge. At the heart of that is close and ongoing dialogue with our current and prospective clients to ensure that we properly understand what they need by way of legal services - and how we can help them get it. Sometimes, that will require new ways of working. I thrive on embracing such change. To be named as Non-lawyer of the year has provided exciting opportunities to help bring that about. Oh and it s also rather nice to have the winner logo at the bottom of my s! 1. Modern Law is the sister title to Modern Claims, which focuses on all issues related to the business of law in the modern legal regulatory, practice and business model landscape. We have a great team of lawyers and non-lawyers within an organisation committed to being flexible as new market challenges and opportunities emerge Sometimes, that will require new ways of working. I thrive on embracing such change
20 20 Interview with... Stephen Webber Interview with... Stephen Webber Emma Waddingham interviews the President of the Society of Clinical Injury Lawyers (SCIL), a new organisation designed to arm claimant clinical negligence lawyers with the tools, techniques and best practice to support their business models and, ultimately, claimants in an increasingly uncertain market. Q Why was SCIL formed and why now? A The timing is due to the Jackson reforms, a purely perfect storm of reforms that could affect the viability of specialist clinical negligence practices. The main focus of the Society, which now has over 150 member firms, is to cover key uncertainty and issues that affect the health and business of clinical negligence practices. The most pressing of these are the impact of legal aid cuts, the loss of recoverable success fees and insurance premiums. It is also key to our members that we look at proportionality definitions and costs budgeting as well as the harsher implementation of court directions, especially since Mitchell. SCIL is aimed only at decision makers in specialist CN firms that are, importantly, panel members of the APIL (Association of Personal Injury Lawyers) and / or AvMA (Association Against Medical Accidents) panels. We therefore attract department heads and senior members of clinical negligence specialists across the country to help them manage and address departmental and business concerns, such as the two main uncertainties, costs budgeting and proportionality. Proportionality is a complete unknown as the current rules don t provide a definition. All we know is that there is work that can be reasonable and there is work that is necessary but courts may still say that necessary work - an unavoidable factor in complex clinical negligence cases - is still not proportionate. Q What practical steps has SCIL taken to support its members? A Since launching in early 2013, we ve held a number of member meetings to give them the chance to share information on court hearing and costs budgeting issues, for example, so we can all see how things are moving forwards in the post-jackson era. We have also pooled our resources into the preparation of documents for clinical negligence practices and have instructed a QC to prepare documentation, such as Post-Jackson CFAs. We have also arranged for ATE insurers to meet with members collectively and present their new policies and products so we know what s available Post-Jackson. Q Obviously there are a number of widespread concerns regarding Jackson but what causes the most concern, businesswise, for SCIL members? A At the moment, our main focus has been on costs budgeting and assisting member firms in how to prepare those budgets, what to include, what documentation should be disclosed in the budgets and taking counsels advice as to what the issues would be. Part of the membership value is added by our ability to help members seek advice on cost budgeting hearings, if there was a global concern about issues, or recommending counsel from a panel of barristers. We aim to do this with any large-scale issue - if it is one that affects all the members then we will share that information. For example, At the moment we re happy to share information. It s amazing how adversity leads to such a reaction of solidarity amongst practitioners