1 Linking the Industry Together March 2014 Issue 06 ISSN Adjusting the scope and operations of regulation: Kevin Rousell explains how Claims Management Regulation will change in light of reform. Michael Brown: The Senior Partner at Berrymans Lace Mawer speaks to Modern Claims about the new challenges for defendant firms and shares his predications for emerging trends in insurance fraud. Modern Claims Magazine March 2014 Issue 06 Charlton Grant Claims management companies and ambulance chasing lawyers are moving towards the commercial sector and looking to simulate claims volumes for industrial deafness, repetitive strain injury and medical based injuries, which can often be difficult to prove John O Roarke STUART FORRESTER Supported by The establishment of DLG Legal Services is absolutely not in response to the referral fee ban. It is a response to the new opportunities that have arisen as a result of the Legal Services Act which allows us to provide legal services directly to our customers 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 Welcome to The New Year is now well and truly upon us and for some, 2013 may already feel like a distant memory may have been the year to forget for many in the claims industry but, as has been so widely reported, a wealth of opportunity for innovation has been borne. So much so, that we have decided to produce a special Supplement with this edition, which has a core focus on innovation in the claims arena in light of reform. On a more personal note, the start of this New Year has been an extremely exciting time, as I have now taken the mantle from the very capable hands of Emma Waddingham to become Group Editor of Modern Claims Magazine. Having been involved with the title since it was launched in last year, I am delighted to fulfil what is a natural transition to my new role. In this issue, as always, we have the usual array of hardhitting features and interviews. Our cover star this issue is Stuart Forrester, Director of the newly licensed DLG Legal Services, he talks to Modern Claims about his plans for the ABS on page 11. Diversification of fraud is also the topic on every bodies lips and we spoke to Michael Brown, Senior Partner at Berrymans Lace Mawer (page 15) and John O Roarke, Chairman at the Insurance Fraud Bureau (page 19), as they offer their predictions on emerging trends in insurance fraud and much more, for the coming year. The initial findings from the competition commission, published in December is now beginning to shift the focus of claims management, as Tony Rand explains (page 61) and in light of the findings, we also have an all important regulatory update from Kevin Rousell, on the state of play for Claims Management Companies (page 45). Kevin Hughes also highlights the importance of striking a balance between brand and cost and what these can mean to the consumer on page 59. In expectation of further change afoot this year and to keep you up to speed, we are holding the Modern Claims Conference on 25th March at Stamford Bridge, Chelsea FC. The conference is now fast approaching and I would urge you to book your tickets (visit co.uk) now if you have not already done so, as this is set to be a sell-out event. Please do feel free to share your thoughts and ideas for Modern Claims with me by ing me via charlotte. but for now, sit back, relax and enjoy this issue of Modern Claims! Charlotte Parkinson, Group Editor Modern Claims Magazine Issue 06 March 2014 ISSN Project Director Kate McKittrick Accounts Director Karl Mason Group Editor Charlotte Parkinson Head of Events Julia Todd Advertising Rachael Pearson Design Matthew Phillis 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 07 Don Clarke talks news THE INTERVIEWS 11 Interview with... Stuart Forrester, DLG Legal Services Charlotte Parkinson, Modern Claims, spoke to the Director of DLG Legal Services about why the Direct Line Group thought the time was right to diversify their service offering to their expanding client base. 15 Interview with... Michael Brown, Berrymans Lace Mawer The Senior Partner at Berrymans Lace Mawer, speaks to Charlotte Parkinson, Modern Claims about the new challenges for defendant firms, his predications for emerging trends in insurance fraud and the impact on the consumer of insurer/ legal businesses 19 Interview with... John O Roarke, Insurance Fraud Bureau Charlotte Parkinson, Modern Claims, spoke to the Chairman of the IFB about the changing landscape of fraud and how his position as Managing Director, General Insurance at LV= as well as a varied career in the insurance industry, stands him in good stead for combating modern-day fraudsters EDITORIAL COLUMNISTS Alan Nesbit Managing Partner Nesbit Law Group & Chairman, ARC Andrew Gibbons ACII MIoD Mason Owen Financial Services member of BIBA Andrew Pemberton Director Argent Rehabilitation (part of Parabis Group) Andy Whatmough Director S & G Response Bippon Vinayak Chairman & CEO Doctors Chambers Bruce Bourne Bruce Bourne Associates Craig Budsworth Chairman MASS & RTA Partner, Glaysiers David Fardy Advocate Lyons Davidson 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 Don Clarke Partner, Director of Strategy Keoghs LLP Gerry Lee Senior Partner P R Hanna Solicitors Jeff Dawson AIC Director of Sales Elite Insurance Jonathan Hewett Group CMO Octo Telematics Keith Crosier Managing Director/Engineer Legal and Technical Assessors Ltd Kevin Hughes CMO GoCompare.com Kevin Rousell Head of Claims Management Regulation Ministry of Justice Michael Davidson Head of Strategy & Sales Goldsmith Williams Solicitors 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 Richard Forth Managing Director Forth Associates Rob Smale Claims Director Ageas Russell Thomson CEO Eclipse Legal Systems Tim Wallis Mediator, Solicitor, Director Expedite Resolution Tony Rand CEO Vamco & Managing Director Partsave Ltd Zoe Holland Managing Director ZEBRA Legal Consulting
5 Contents THE OPINIONS 24 Sector Soapbox Craig Budsworth, MASS, Andrew Gibbons, BIBA, Alan Nesbit ARC and David Johnson, FOIL 27 The game changer Gerry Lee, P R Hanna Solicitors 27 True independence Rob Smale, Ageas Insurance 29 Still Alive and Well? David J Williams, AXA 29 Managing a surge Peter Horton, LV= 31 How to get it right in 2014 Dez Derry, mmadigital 31 The rise of the smart consumer Jonathan Hewett, Octo Telematics 34 Ability and capability Nik Ellis, Laird Assesors 34 A unified experience for your client Russell Thomson, Eclipse Legal Systems 35 Keep your crystal ball close at hand Keith Crosier, Legal and Technical Assessors Ltd 35 Is independence the answer? Andrew Pemberton, Director, Argent Rehabilitation (part of Parabis Group) 37 The finer details Zoe Holland, Zebra Legal Consulting 37 A fighting chance Richard Forth, Forths Associates 39 Learning to do what is right Peter Parry, Independent Accident THE FEATURES 43 Making the simple complex and sinister Patrick McGuire explores whether, in a bid to create a simple and efficient system, the scales of justice have been tipped in favour of the Insurers in Scotland. 45 Adjusting the scope and operations of regulation Kevin Rousell explores what the MoJ and the Claims Management Regulator are doing in light of change. 49 Six Reasons to Look Again at ADR and Mediation Professor Dominic Regan recently said that Alternative Dispute Resolution (ADR) is now back on the agenda as a means of settling disputes efficiently and at proportionate cost, Tim Wallis reports. 51 An alternative story of David and Goliath Jeff Dawson explores the impact of LASPO on ATE Insurance, as he compares the modern day claimant seeking justice, to the story of David and Goliath. 53 Construction All Risks (CAR) Insurance- Policies and Pitfalls CAR policies are intended to indemnify against all risks of damage to the Insured Property during construction works. All risks, that is, that are not otherwise excluded by the policy, as David Pliener explains. 55 Legal Opinion Modern Claims spoke to our legal experts about how they are keeping on top of change and delivering the best possible service for their clients in the new legal environment. 59 Not just a matter of cost How insurers position themselves, and communicate to potential customers, can be highly effective, as Kevin Hughes reports. 61 Re-engineering the parts procurement process Tony Rand explains why the report of the Competition Commission s Provisional Findings, published in December, is beginning to shift the focus of claims management to other matters minutes with... Martin Milliner, LV= insurance 62 Garvins Solicitors LLP chooses Proclaim Personal Injury specialist to implement Proclaim Case Management firm-wide in
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7 Don talks news 07 DON TALKS NEWS... WHIPLASH - TIME FOR REFORM I doubt that many would disagree that the last 12 months have brought more reform in the personal injury compensation arena than has occurred in the last 20 years. The Government have driven through both reform led by Lord Justice Jackson and from the Ministry of Justice itself. They are to be applauded for their willingness to tackle difficult issues head on and seek to reduce pressure on premiums for hard pressed motorists. Having said that, one vital piece of the reform jigsaw remains outstanding. I am of course talking about the thorny issue of whiplash or RTA soft tissue compensation that has grown to epidemic proportions in the UK over the last 10 years. Whilst the number of road traffic accidents has been in decline and vehicles have become safer, the volume of whiplash claims has continued at an unacceptable level. The catalyst for this increase was a dysfunctional process that provided perverse incentives to claims farmers and claimant lawyers alike to pursue more and more claims. The Jackson and MoJ led reforms have gone some way to abate those incentives but there is no doubt that in terms of whiplash, more needs to be done. Under the leadership of the Justice Minister, Shailesh Vara, the MoJ have undertaken to drive reform at pace. Having met the Minister, I have no doubt in my mind that he means We need an environment where the expert is not under any commercial pressure to produce a certain outcome and / or prognosis what he says and is committed to communicating firm recommendations by his self imposed deadline of July this year. The MoJ have clearly articulated their views on reform. They see this as a medical led solution and wish to deliver a panel of both accredited and truly independent medical experts. Only reports from a panel expert would support a whiplash claim in the new regime. At Keoghs, we agree that these dual strands of accreditation and independence are key to the success of the proposed reforms. Swift and efficient redress A new process must deter fraudulent and exaggerated claims with a clear message that such claimants will be exposed by the accredited and independent expert. Equally, any new process must also preserve access to justice and provide swift and efficient redress for genuinely injured claimants. Accreditation and continuous training and development are the cornerstone of any profession. Experts must be competent and keep up to date with new research and opinion. We see thousands of medical reports every year and it must be said that the quality is very varied. The concept of cut and paste whiplash reports is well known and we see reports which barely vary, save for the claimant s name and address. Accreditation needs to ensure that the expert has up to date knowledge, is suitably qualified and experienced and can present evidence to a high standard. Training should include objective criteria for assessing a claimant when presenting with whiplash symptoms. The ability to appreciate the bio-mechanical aspects of whiplash should also be fundamental. In short, given the speed and mechanics of the accident, could the claimant have sustained the injuries complained of? Accreditation is not a one off requirement. There should be an annual refresher to ensure that experts keep up to date and also recognise their duty to the Court in medico-legal reporting. We also believe that peer review and some form of selective audit should also form part of the proposals. Having said this, there must also be a clear and independent appeal process to protect experts in the event of a failure to secure accreditation or proposed removal of an existing authority.
8 08 Don talks news True independence This brings me to the issue of independence. We need an environment where the expert is not under any commercial pressure to produce a certain outcome and / or prognosis. It is commonplace now for the solicitor to instruct an expert where a direct financial link exists - it is often the case that the medical agency is owned by those who also own the law firm. Whilst we recognise the expert s duty to The catalyst for this increase was a dysfunctional process that provided perverse incentives to claims farmers and claimant lawyers alike to persue more and more claims the Court, there is unquestionably a lack of independence in such circumstances. The MoJ clearly recognise this (as do others on both sides of the traditional Claimant/Defendant divide) and have committed to breaking such links in the new process. We welcome this commitment and look forward to seeing how this will work in practice. Experts should then be in a position to make a declaration of financial independence in their reports. Whilst accreditation and independence are key, there are other more nuanced issues that will assist in improving the overall process. We consider it essential that the defendant be able to jointly instruct the expert or at least be able to provide their own version of the accident event. Experts have been unfairly criticised for some of their opinions in the past, when the information they had been given about the accident circumstances was, at best, rudimentary. It is key that the expert is fully informed by both parties as to the precise accident circumstances so that a considered opinion can be given as to the bio-mechanical impact of the collision. Fixed fees that are embedded in the Civil Procedural Rules will also deliver transparency and consistency. Fixing fees avoids dispute and the parties should work together over the coming months to agree what is reasonable. Experts should then be paid promptly regardless of their opinion within the report to prevent any perverse financial incentives. Whilst not adopted, I still support Lord Justice Jackson s interest in some form of damages evaluation tool. This would bring further transparency to the compensation process and avoid dispute over relatively small sums. Whilst not in scope over the coming months, it is an issue that I hope the MoJ will be prepared to re-visit in time as a further step to improve clarity for the consumer. A final plea A final plea would be in connection with scope. It can be no coincidence that since the RTA portal fixed fees were reduced last year, we have seen a sudden and continuing increase in the number of ancillary medical reports attached to whiplash claims. I am of course talking about compensators being inundated with reports from psychologists and rehabilitation experts. It is perhaps also no coincidence that these reports are often commissioned by solicitors with a direct financial link to the agency instructing that expert. The timing of this sudden and stark increase in such reports from certain claimant law firms, marries up to the reduction in the fixed fees. This needs to form part of the MoJ s work over the coming months. This new layering of cost through additional disbursements is negating the effect of the reduced fixed fee, whilst often adding no, or no significant benefit to injured victims. The intended benefit of reduced transactional cost should be passed on to hard pressed motorists and not find its way back into the coffers of claimant law firms through new and additional charges. There has been so much debate about whiplash compensation over recent years. It is time for that debate to crystallise under the auspices of the MoJ stakeholder group. The Minister is committed to reform and has set an ambitious deadline of July for formal recommendations. All stakeholders should now come together to support that ambition and work with the MoJ to deliver an improved process. Such a process should have independence at its heart. That will serve to deter wouldbe-fraudsters and those who seek to exaggerate symptoms for personal gain. Access to justice and swift redress will be preserved for the genuine claimant. To conclude, I would take you back to the MoJ s original consultation on whiplash entitled Reducing the number and costs of whiplash claims. That has always been the goal and I hope that the culmination of the next few months work delivers that ambition through a more effective and efficient medical process. Don Clarke is a Partner at Keoghs Comparing apples and oranges For those involved in the now small number of claims not covered by the low value protocols, the recommendations that the Civil Justice Council (CJC) will shortly be making to the MoJ on the Guideline Hourly Rates (GHR) payable to law firms are likely to be of particular interest. In a post-jackson world dominated by fixed fee structures it is clear that there needs to be a radical rethink of what constitutes an equitable hourly rate for work which has historically been considered complex. The value of a case can no longer be the single arbiter of complexity, as common processes can be applied to a large range of multi-track cases. Unfortunately the research conducted by the CJC to date, focusing as it does on pre-reforms operating costs, is unlikely to expose this issue. It really could be a case of comparing apples and oranges, when the recommendations are made to the MoJ. FOIL, Keoghs and others have strongly made this point at the recent verbal evidence sessions that form part of the consultation process, and we now wait to see whether there is any shift in approach.
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11 Interview with... Stuart Forrester 11 Interview with... STUART FORRESTER In the wake of two heavy-weight corporate organisations, PwC Legal and DLG Legal Services gaining ABS licensing approval at the end of January, Charlotte Parkinson, Modern Claims, spoke to the Director of DLG Legal Services about why the Direct Line Group thought the time was right to diversify their service offering to their expanding client base. Q Why did Direct Line want to diversify into a legal offering in the form of the ABS DLG Legal Services? The Group already provided some out-sourced legal services, why was it important to bring these in-house and branch out to offer full legal services offering? A We announced our intention some time ago to establish our new law firm, DLG Legal Services Ltd, which will be wholly owned by the Direct Line Group. The aim of the new venture is to provide us with legal services to our customers of our insurance products. The overall aim of DLG Legal Services is to offer a proposition, which is in the clear interest of customers, to offer them an affordable range of legal services, in the event of them having to make a non-fault claim, for example, if there was an accident where the damage was caused by a third party. Initially, to offer advice on and manage the claimant s personal injury and non-injury claims, such as debt recovery, employment and contract issues. Following the Legal Services Act 2007, we were presented with the unique opportunity to extend the range of services we currently offer to our customers, which protects them from excessive legal costs. This will allow our customers to have access to affordable access to justice, should they need it. If a customer has taken out one of our motor legal protection policies and is unfortunate enough to be in an accident which is not their fault and they need to make a claim, they will be able to keep 100% of their awarded damages. If they do not already have a policy with us, we will be able to provide them with an affordable service. The overall aim of DLG Legal Services is to offer a proposition, which is in the clear interest of customers, to offer them an affordable range of legal services, in the event of them having to make a nonfault claim
12 12 Interview with... Stuart Forrester The establishment of DLG Legal Services is absolutely not in response to the referral fee ban. It is a response to the new opportunities that have arisen as a result of the Legal Services Act which allows us to provide legal services directly to our customers Q You have an extensive background in accounting and finance, what made you the right person to fill the role of Director of DLG Legal Services? AWhen establishing these structures, one of the things the regulators keep talking about is that these new entities must be in the interest of the customer and they must be well managed with a sound commercial footing. Financial stability is a key theme which is emerging in the changing landscape, with a common theme from the SRA often being that these new organisations should be run as businesses. The financial stability is so important because, without that, we cannot provide a lasting service to customers. This is very much a team effort and we have sourced the relevant technical expertise from our in-house teams and our partners. It is the senior management team which we have in place that covers the legal, financial and operational expertise required to run this business and as a result of that, people leadership is going to be a key part of my role. I have been very fortunate in my career to have worked in a number of challenging and interesting roles, all of which are regulated in one way and another and this, coupled with my financial acumen and knowledge, provides me with a fantastic platform for taking on this role. Q What will your role as Director of DLG Legal Services involve on a day to day basis? A People leadership is absolutely key and will form a large part of my role, making sure that I can understand and help people deliver their roles within the new business. No day within the role is going to be the same and there will be a variety of different things happening every day. I will also be working on a continual basis with the management team to ensure they are committed to the customer, as well as helping assess what they need in order to best deliver that service. Q Why did Direct Line want to partner with the Parabis Group? A DLG Legal Services will provide a range of our own services, as well as those provided in partnership with the Parabis Group. We have a long established and trusted relationship with Parabis having collaborated previously as two businesses. They are market leaders in bringing people, processes and particularly legal expertise, to businesses in this field. We firmly believe that combining our services with their experience and skill with our in-house legal departments within our claims business, will allow us, jointly, with the right skills and expertise, to deliver a good service to our customers. Q How potentially disruptive is/has the conversion process been for both parts of the Parabis Group and Direct Line Group to customers and staff etc during the licensing process and creation of the new venture? A There has been no disruption at all, particularly for the customers, there has been an absolute continuation of service and there has been no change at all during the application process to the services which we provide. We continue today to provide the services either direct, from our staff within the Direct Line Group or via our panel, some of which goes to Parabis already. The same is true for the staff who look after our customers. The application process itself and the creation of the new law firm, has been lead by me and supported by a dedicated Project Team, which was set up specifically to create the new business. Q Why did you take the decision to launch DLG Legal Services now, at a time of such great change within the wider legal and insurance sectors, and has this decision been to the detriment of staff who work under the Direct Line umbrella, in the form of redundancies etc? Financial stability is a key theme which is emerging in the changing landscape, with a common theme from the SRA often being that these new organisations should be run as businesses A We announced our decision some time ago and took our time to consider what we wanted to do. As previously mentioned, the Legal Services Act provided an opportunity for us to offer the services direct to our customers in this changing environment and protect them from excessive legal costs, particularly in the event of a personal injury claim. The existing teams which already provide our legal services (such as in-house litigation services), will be moving under the DLG Legal Services Ltd law firm. DLG has announced in the past some proposed changes and potential job losses but these are completely separate to the establishment of DLG Legal Services. Q The application for ABS licensing was an extremely lengthy process, initially having been made in July 2013 and having been granted at the end of January 2014, with services being offered from March 2014, how did you find the licensing process? A It is important not to forget that we are setting up a business from scratch in a heavily regulated environment and it is essential for the benefits of the future clients that the process is comprehensive and thorough. The SRA have a hugely important role and we are absolutely delighted to have been granted a license for our business.
13 Interview with... Stuart Forrester 13 We are setting up a business from scratch in a heavily regulated environment and it is essential for the benefits of the future clients that the [regulatory] process is comprehensive and thorough Q Why is DLG Legal Services not expected to make a material contribution to Direct Line Group profits, given that it will save the Group money in the long run and was the main catalyst for the decision a response to the referral fee ban? A The establishment of DLG Legal Services is absolutely not in response to the referral fee ban. It is a response to the new opportunities that have arisen as a result of the Legal Services Act which allows us to provide legal services directly to our customers. When we made the decision to progress with our license application, we needed to be satisfied that it was in the clear interest of our customers to offer these services. Customers, the regulator and politicians will be happy with our offering, as it demonstrates the exact reasons why the Alternative Business Structure (ABS) legislation was introduced; to widen access to justice, give customers more choice and a great experience. Q What will DLG Legal Services offer consumers of legal/insurance/ financial services which differentiates it from the competition? A DLG Legal Services is all about offering our customers greater legal protection, access to affordable justice, access to legal advice in respect of employment and contract disputes, as well as enabling personal injury claimants in particular to retain as much compensation as possible. This means that for our existing legal expense claimants, 100% of all damages are retained. Without legal expenses insurance, we have created a fair alignment between the risk taken by us in relation to the claim and the share of legal expense paid by that customer, which creates an affordable access to justice. This contrasts with some practices out there in the market, where some solicitors may retain up to 25% of awarded damages as success fees. We are delighted to have been awarded our licence from the SRA and delighted to be able to extend our offering to our customers, which in turn has allowed us to continue to differentiate ourselves from the market. Stuart Forrester is a Chartered Accountant having qualified in 1995 with Wilder Coe. Prior to his appointment as Director of Legal Services at Direct Line Group in 2013, Stuart spent four years with Provident Insurance as Head of Finance. He has also held a number of senior positions at Bradford Housing Trust and Merrill Lynch.
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15 Interview with... Michael Brown 15 Interview with... MICHAEL BROWN Michael Brown, Senior Partner at Berrymans Lace Mawer, speaks to Charlotte Parkinson, Modern Claims about the new challenges for defendant firms, his predications for emerging trends in insurance fraud and the impact on the consumer of insurer/legal businesses. Q investigation methods? A How is Berrymans Lace Mawer working with insurers to improve the speed in which claims are turned around for consumers, for example, by utilising early Keeping claims within the extended MoJ process/ portal depends on compensators admitting liability within short, fixed periods of time. Speed of investigation and decision making are crucial. BLM worked with insurers and large corporate insured s before the extension of the scheme, to ensure that they were fully aware of these challenges. We provided help and technical support and worked together on solutions to ensure prompt claims notifications and swift investigations. This support and training is an ongoing process allowing for a collaborative, joined-up approach, which prioritises early investigation. We have provided additional training and support for claims investigators encouraging a more pro-active system of full investigation of circumstances, based upon whether a claim is likely to be received rather than when a claim has actually been filed by a third party. We work with clients to monitor claims trends and to prevent repeat claims. We are using the HighQ Collaborate system as an extranet facility, assisting lawyers to investigate and deal with claims proactively and without time consuming duplication of effort. HighQ Collaborate allows us to develop a precedent bank with a document management functionality, to build an online wiki resource dealing with recurring issues on claims and which allows us to share updates on legal developments. The objective is to create a cloud-based virtual legal environment, where claims staff can access a range of reference and case information. We are keen, wherever possible, to streamline processes with B2B integration and the use of a joint portal is a valuable first step. In addition, we are working with clients looking at all aspects of third party intervention, whether they are medical, property or motor, to speed up settlement of genuine claims. It will take some time for the reforms to bed in and, crucially, for the courts approach to the reforms to crystallise
16 16 Interview with... Michael Brown The challenge for law firms over the next 12 months will be to deal with all of the changes and uncertainty whilst simultaneously striving to maintain quality on behalf of clients Q What are the key challenges for the claims sector and defendants in the next 12 months? A The claims sector is in a period of uncertainty and flux following the introduction of the Jackson reforms and the extension of the MoJ process. This is not unexpected: we are waiting to see how the rules and procedures apply in practice. As ever with significant change it will take some time for the reforms to bed in and, crucially, for the courts approach to the reforms to crystallise. Law firms are testing the parameters of the new rules. So far different courts approaches to the same issues have proved divergent. At this early stage, we have seen more applications to court, greater administration and ironically, increased costs. When combined with the post-mitchell blood on the floor approach to any breach of a court direction there is a significant pressure on law firms to ensure that workloads are such that the lawyers can deal with these additional pressures. The practical Awareness, identification, detection, deterrent and intelligence sharing are key aspects of avoiding fraudulent claims in all areas impact of qualified one-way costs shifting (QOCS) is likely to become clearer in the next 12 months. Insurers and compensators will no doubt be reviewing their litigation strategies extensively, given the significantly reduced ability to recover costs under the QOCS regime. At the same time, defendants will certainly test the courts approaches to the limited exceptions to QOCS. The challenge for law firms over the next 12 months will be to deal with all of the changes and uncertainty whilst simultaneously striving to maintain quality on behalf of clients. Q Do you anticipate an influx of clinical negligence/industrial disease/nihl claims in the coming months/years and how can fraudulent claims be avoided in these types of often complex/ expensive cases? It is certainly the case that [ABS] models will enable closer business relationships to exist between insurers and legal practitioners but whether that is in the best interest of the consumer remains to be seen A The influx of clinical negligence claims appears to have peaked and is now settling out. The NHS LA s annual report for recorded a 10.8% increase in claims from There was a rush to beat the 1/4/13 deadline for end of recoverability of success fees. The latest data indicates a settling out of claim numbers but a broadening in the type of solicitors trying to get into the clinical negligence market, which suggests that the fees limits in other personal injury sectors is pushing firms to move into more lucrative areas, of which clinical negligence is seen as one. As to the years ahead and what this could hold, the expectation must be that the restrictions on recoverability of costs will move even into this sector of work. For many years it has been seen as special, due to its heavy expert requirements but it is surely only a matter of time before there will be more aggressive attempts to control those costs. The impact of Jackson is being felt in the form of greater control of the number of experts and sharing required between defendants under the title of costs control/budgeting. There has been a notable increase in these types of claims over the past 12 months in the fraud sphere. It is clear that the claims market has moved from the traditional motor arena into these areas. To monitor the claims and avoid fraudulent pay-outs, training for staff accompanied by red flag indicators at the start of a case and during its lifecycle are essential. Without training for staff who deal with these cases and use of these red flag indicators, it is possible for cases to rumble on without fraud being detected early. This leads to increased cost for the insurers in defending the claims and puts them on the back foot in terms of investigation. Fraud awareness is essential for handlers of these claims to ensure that the identification and detection of claims with fraud concerns is prioritised to ensure that the right investigation strategy is employed. Awareness, identification, detection, deterrent and intelligence sharing are key aspects of avoiding fraudulent claims in all areas. Q In an interview with Modern Claims, in July 2013, Tim Oliver, Group Chief Executive of Parabis Group said both defendant firms and insurers need to work together to find a dynamic solution to EL/PL and push them through to settlement. How have insurers/ defendant lawyers been working collaboratively to streamline the EL/ PL claims process? A The extension of the MoJ process to incorporate EL/ PL claims up to 25,000 itself provides the basis of a dynamic solution to low value EL/PL claims and for pushing them through to prompt settlement. To ensure that clients were (and are) in a position to take advantage of the benefits of the process, BLM has been involved in extensive training, both before the introduction of the reforms and on an ongoing basis. The key is to ensure that claims are dealt with efficiently whilst not compromising quality. Insurers are competing for market share and it is crucial that
17 Interview with... Michael Brown 17 they have a partnership with suppliers that ensures that their policyholders are happy that the right claims are being settled at the right stage and at the right cost. In November 2013 we launched a new product offering solutions to specific legal issues for a low fixed cost price. ExpressAssist essentially provides access to legal advice to those issues that may be blocking the resolution of a claim, such as a In the short term, claims which generate minimal money for the fraudster or those fraudulent claims that come with too many obstacles for them to make the business profitable will peak and decline quickly difference of opinion between insurer, policyholder and the corporate board; a pressing need to make a decision on liability to keep cases within the MoJ scheme for injury claims; or an immediate need for advice on resolving policy coverage issues. The service is designed to apply to pre-litigated civil claims under 25,000 in the fields of casualty, disease, policy coverage, professional indemnity, product liability and property damage. It was initially developed to offer extra assistance to clients in light of the reduced timescales for responses on liability set down by the MoJ reforms. We soon realised that it had a wider application across other classes of business which had claims that often came up against unnecessary barriers. Q The Competition Commission published it s provisional findings at the end of last year, the overall aim of the commission was to ensure that access to justice is not compromised in lowering insurance premiums; do you think this aim will ultimately be achieved? A It is clear from the recent discussions and publications following the Transport Committee s review of the cost of motor insurance/whiplash that the Government feel that a real push towards establishing such a panel will assist in reducing whiplash claims. In terms of these panels becoming a reality, there is a lot of work to do before that is achieved. APIL, whilst supporting the principle of using medical experts in the fight against fraud, has openly criticised the introduction of medical panels. John Spencer, vice-president of APIL, said:... it s important that the injured person, like all other types of litigant, is able to choose his expert. Concerns have been expressed by many from across all areas of the claimant, defendant and medical professions in relation to the independence of such a panel. It is very easy to say such a panel will be independent. However questions remain unanswered around who will control the panel; who will regulate the panel; who will register experts to it and control entry to the panel; the method of review of the panel; the right of appeal and what this process will look like; and to whom the panel is answerable. Until such questions are answered the reality of the panel seems some way off. Q How important is it for Insurers to be working with partners who can innovate and produce streamlined claims solutions, what are the best and most efficient solutions (such as co-sourcing and risk-reward models), which both insurers/defendants should be adopting? A Insurers want to work with firms who innovate and produce great solutions to contain litigation and reduce indemnity spend. These are key elements for any relationship and is our primary focus at BLM. We are continually asked for new solutions to meet the new challenges which insurers face. The best and most efficient solutions vary depending upon the business model of the insurers concerned as well as their ethics and ethos in relation to resolving claims. As such it is impossible to say there is a best efficient solution. Industry knowledge and awareness will be key and prompt and powerful deterrent messages should be clear to ensure that these claims areas are not exploited for a prolonged period A The publication of final findings is still some way off, to say nothing of the implementation of any new approaches. The access to justice question probably resonates more with the impacts of the MoJ reforms and the fixed recoverable costs which now also apply in litigation. Access to justice can be ensured if business models adapt to the new regimes. At only six months in to the introduction of the new fixed recoverable costs regime it is probably too early to be seeing sustained trends. Q Many believe that a truly independent medical panel holds the key in the fight against fraud, do you think the claims sector will reach a point where this panel will become a reality, will it ever be fully independent/how will it be effectively regulated? Q Much of the talk in 2013 was how ABSs would affect the claimant side of the market, how do you anticipate ABSs will affect defendant firms moving into 2014, particularly in light of large scale joint ventures between insurer/legal practitioners? AAs the liberalisation of the legal services marketplace matures, it is likely that more defendant firms will be exploring ABS models. Whether such models are the right business models remains to be seen but there is no lack of desire to explore the benefits of such models. It is certainly the case that such models will enable closer business relationships to exist between insurers and legal practitioners but whether that is in the best interest of the consumer remains to be seen
18 18 Interview with... Michael Brown Q What area(s) of fraudulent activities/claims are you most concerned about as 2014 takes hold and how do you think these issue(s) will play out over the coming months/years? AIt has been clear for some time that the traditional motor fraud arena is changing. Fraudsters are diversifying into other areas. The bottom line is that fraudsters will move into any areas where money is to be made. The growth in noise-induced hearing loss claims has been significant for the last months and his growth is anticipated to continue. There has been an increase in advertising by claims management agencies to advise the public of the opportunities for them to bring medical negligence claims. This is an area in which we have seen tremendous growth. In the short term, claims which generate minimal money for the fraudster or those fraudulent claims that come with too many obstacles for them to make the business profitable will peak and decline quickly. However whilst these areas are being exploited, fraudsters will be testing new areas to move into to make money. It will be key for all those involved in claims to increase their own awareness of the issues, to ensure that the handlers can identify and detect these claims quickly and deploy appropriate strategies to tackle such claims. Industry knowledge and awareness will be key and prompt and powerful deterrent messages should be clear to ensure that these claims areas are not exploited for a prolonged period. QWhat is next for Berrymans Lace Mawer? AOur strategy is to continue working collaboratively with our clients, as we remain at the centre of the risk and insurance marketplace. We are expanding our business to ensure we are dominant in all lines of insurance. This will be supported by the development of new products and services that we can offer to our clients to ensure they meet the challenges ahead. We are also looking to refresh our brand and reposition ourselves, whilst ensuring we remain connected to the insurance world, to our clients and to each other at BLM. Consultant Automobile Engineers and Assessors We welcome all enquiries from prospective and established clients. Please contact us to disucss your requirements. Laurel House, Main Street, Garforth, Leeds LS25 1HB Prompt turnaround reporting Tailored services to suit individual requirements Website: Tel: Big enough to cope small enough to care MC SBT1486 // March Charlton 2014 Grant - Modern Claims L&T Ad v2.indd 1 16/12/ :52
19 Interview with... John O Roarke 19 Interview with... JOHN O ROARKE Charlotte Parkinson, Modern Claims, spoke to the Chairman of the Insurance Fraud Bureau (IFB) about the changing landscape of fraud and how his position as Managing Director, General Insurance at LV= as well as a varied career in the insurance industry, stands him in good stead for combating modern-day fraudsters. Q You have had a 25 year career in the insurance industry, how have you previous roles at AIG, Churchill Insurance and RBS Insurance helped shape your role at the IFB? A When I first joined AIG from the accounting profession, the jargon and terminology were daunting and when most people first enter the insurance industry, they think they will never understand it but within twelve months they are speaking the language. From the outside, the industry looks impenetrable but once immersed in, little by little, an understanding is forged. It is my broad base experience of a variety of roles within the insurance industry that have prepared me for my role as Chairman at the IFB. For example, during my time at AIG, most of my time was spent oversees and I was experiencing how different markets work in North America, Europe and Africa as well as focussing on large risks. At AIG we insured oil platforms, aeroplanes and chemical plants, whereas moving back to the UK to work for Churchill, there was much more of a personal lines focus working on car and home insurance and LV= has very much been a continuation of that. The industry has experienced a huge upturn in litigation for personal injury over the last 5 or 6 years, which simply wasn t a feature of the market 10 years ago. 10 years ago, insurers had an appreciation of the real, genuine cost of personal injury but, unfortunately, the upturn since then has largely been fraudulent or opportunistic. John is Managing Director of LV= General Insurance. Q How has the role of the IFB changed since it was established in 2006? Is organised crime/ insurance fraud becoming an increasingly pertinent issue and is it becoming increasingly difficult to detect organised crime rings? A The establishing of the IFB in 2006 was prescient in itself, in that it anticipated, at an early stage, how bad organised crime would become. The organisation has grown in capability and confidence in step with the challenges that it faces. As these challenges have become more sophisticated and the criminals have become smarter and more deceptive, the IFB has evolved accordingly, although this is still far from a completed task. An area John is a Chartered Accountant and began his career in insurance with AIG. After six years overseas he returned to the UK and spent 13 years with the newlyfounded Churchill Insurance, initially as Finance Director and then Managing Director. Churchill became one of the UK s best known car insurance brands with annual premium income of over 2bn before being acquired by RBS in John was appointed Chief Operating Officer of RBS Insurance in 2003 but left RBS in 2005 to set up ABC Insurance, along with four other RBSI directors. ABC was acquired by LV= in 2006 and formed the new management team of the LV=General Insurance business. LV= is now the UK s third largest car insurer and a leading home and SME insurer. The company routinely wins awards for its customer service and won the BIA General Insurer of the Year award in John was appointed as Chairman of the Insurance Fraud Bureau on 24 April The IFB was established in 2006 to lead the detection and prevention of organised, cross-industry fraud and is current managing fraud operations totalling 120m.
20 20 Interview with... John O Roarke An area where the IFB has evolved particularly well is data sharing and the biggest advances we have made to date involve sharing data with insurers to help us combat crime where the IFB has evolved particularly well is data sharing and the biggest advances we have made to date involve sharing data with insurers to help us combat crime. Going forward, this is also going to be the biggest area of opportunity for us. Q Other than motor, what are the most common types of insurance fraud being committed today? A Clearly, motor is by far the biggest area of fraud currently being committed but there are certainly a number of other themes emerging within the industry. One of these areas is home insurance, where the patterns emerging are less centred on organised crime and the behavioural patterns are much more opportunistic, as people are trying to claim for things which aren t on their policy, for example and the economic climate is certainly a contributing factor to the rise in this type of fraud. The second theme which is emerging, which is probably more concerning, in terms of motor claims fraud, is that some claims management companies and ambulance chasing lawyers are moving towards the commercial sector and looking to simulate claims volumes for industrial deafness, repetitive strain injury and medical based injuries, which can often be difficult to prove. Claims management companies and ambulance chasing lawyers are moving towards the commercial sector and looking to simulate claims volumes for industrial deafness, repetitive strain injury and medical based injuries, which can often be difficult to prove Q part of these often complex cases of fraud? A Ghost brokering has been widely reported as an increasing area of concern for insurers and the IFB, how are the IFB working with insurers to put a stop to this issue, particularly the data capture and manipulation which is a key Ghost brokering was the story of In the second half of 2013, through awareness of the issue at the IFB and at the financial crime committee of the ABI, most major motor insurers became alive to the risks and the modusoperandi of fraudsters committing this type of crime. From my own experience at LV=, we have managed to close the door on the majority of ghost brokering. The main way we have done this is by closing down the peripheral payments, prepaid and foreign credit cards and implementing tighter controls around payment generally, which have made it much more difficult for criminals to get away with ghost brokering. Q How are the IFB working with the police to combat organised crime? A There is a very strong relationship between the Insurance Fraud Enforcement Department (IFED), which is a joint venture between the police and the insurance industry and which insurers are funding. This has been extremely successful and in the fourth quarter of last year the 400th arrest was made. The establishment of this department has been a real catalyst and has raised the profile of insurance fraud and the ability to prosecute at a national level and although the organisation is only currently London based, we have had increasing interest from other police forces around the UK.
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