Insurance Market Conditions & Trends 2014/15

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1 Insurance Market Conditions & Trends 2014/15

2 The DAC Beachcroft LLP Insurance Market Conditions & Trends report is provided for information only and no liability is accepted for errors of fact or opinion it may contain. Professional advice should always be obtained before applying the information to particular circumstances. The copyright in this report is retained by DAC Beachcroft LLP. We like to keep our clients and contacts informed of services we think may interest them and, in order to do so, we keep a database of contact details. These details are never passed on to any other organisation without permission. If you would prefer not to hear from us again with regard to any of our legal updates, seminars and other services, please DAC Beachcroft 2014

3 User guide This interactive PDF allows you to find information and navigate around this report more easily. It also links you to useful supplementary information. Click on the Search this PDF icon to go directly to the issue or topic of your choice. Guide to the buttons Go to main contents page Search this PDF Open a print-friendly PDF Go to previous page Go to next page Return to last page visited Links Dynamic links within the text are indicated by an underline, eg Contents. Clicking on these will take you to further information. All the headings on the Contents page are also live and will take you straight to each topic. You can our partners directly on any point by clicking on their address. Full screen mode The PDF is set up to view in full screen mode, when using Acrobat Reader (this function does not work in Preview). To turn this off, eg to zoom in or to print, press Esc, and the full toolbar is revealed. To return to full screen mode, press Ctrl-L. Tabs Clicking on one of the coloured tabs at the top right of each page will take you to the start of that section. 1

4 Contents 3 Welcome The challenges facing the insurance industry grow ever broader and deeper: this report offers thought-provoking and informative content to help you meet them. 22 Cyber risks: tailoring your approach Modern commerce is totally dependent on technology but threats to networks, sensitive data and vital global systems grow daily. How can insurers find the right solutions to the new risks? 4 50 predictions DAC Beachcroft experts survey the risk horizon and highlight 50 key developments to look out for. 5 Property 6 Construction, Energy & Engineering 7 Directors & Officers / Financial Institutions 8 Technology, Media & Information Risk 9 Professional Liability 10 Product Liability & Recall 11 Marine, Aviation & Transport 12 Reinsurance 13 Insurance Advisory 14 Medical Malpractice 15 Casualty 16 Motor 17 Cross Sector Issues Fracking: drilling for a brighter future? Fracking has been given the green light in the UK but do insurers understand the exposures and are they ready to take on the new risks? 28 Prisoners of the past? Can the insurance industry break free from its past and embrace the innovation key buyers say it lacks? Streamlined processes, better use of data and new modelling techniques can all contribute. Developments DAC Beachcroft s essential guide to the changing legal and regulatory environment. Our experts have summarised their top 20 developments in each category to impact the insurance industry over the last year. 18 In-depth analysis In four thought leadership pieces, DAC Beachcroft highlights where insurers need to innovate and reinvigorate their products to provide relevant solutions to today s challenges. 19 A new regime It has been a long time coming but the new Insurance Bill is finally making its way through Parliament. Are you ready for its far-reaching implications which potentially touch all classes of business? 32 Legislation 39 Cases 46 Other developments 53 Procedure A special update on the impact of the Jackson reforms and their implications for insurers. 2

5 Welcome The insurance market continues to face challenges across a number of business lines, arising from various political, economic and environmental factors. In this report, we identify our selection of the key issues of which the insurance industry should be aware. In this eighth edition, we have made some significant changes in response to feedback from our clients and the insurance market. The new title reflects the emphasis on looking forward, highlighting trends and considering implications for the insurance industry, while retaining the report s traditional market conditions element. The first section sets out our top 50 predictions of issues that will affect the industry, defined by class of business. The second section provides a more indepth analysis of four key areas the shake-up expected to result from the new Insurance Bill, cyber risks, fracking and innovation. As in previous editions, the third and final section summarises the most significant pieces of legislation, cases and other developments over the last year. We are committed to the insurance sector and we are recognised as pre-eminent advisers to the international insurance market. We are more than just lawyers we are expert advisers on risk with a real depth and breadth of experience. All of this has been brought together, from a UK perspective, into this report. We aim to produce similar reports across our other international regions in the future. We hope you find this informative, thoughtprovoking and, above all, useful and we are keen to receive your feedback. There is an opportunity for you to provide this on a separate online form that accompanies the PDF version of this report. If you would like to discuss any areas of the report in more detail, please contact me or your usual DAC Beachcroft contact. We are more than just lawyers we are expert advisers on risk with a real depth and breadth of experience. All of this has been brought together, from a UK perspective, into this report. David Pollitt Head of Insurance Bio 3

6 50 predictions In-depth analysis Developments 50 predictions Our experts have been put on the spot and asked to make some predictions on the changes the insurance industry can expect. Threats, opportunities, new risks, political challenges they are all here in our top 50 predictions. 4

7 50 predictions In-depth analysis Developments Property Social media management will become more central in handling/pre-empting claims. The speed with which news and commentary, both good and bad, spreads is rewriting claims management. Nick Young Partner Bio Insurance Bill will impact disclosure, warranties and fraud The Insurance Bill will fundamentally change the duty of disclosure for businesses and impact the effectiveness and use of all warranties, as well as clarifying the remedies for fraud. Insurers may choose to implement the proposals regardless of whether they are enacted. There will also be a range of responses to the contracting out options. All of this will have a significant impact on brokers, underwriters, claims handlers and insurers agents. More controversial proposals, including damages for late payment, should still not be ruled out. If successful, the Bill is expected to be enacted in early Energy Act could lead to market overcapacity The restrictions in the Energy Act on letting property that does not meet strict energy performance standards could increase the number of unoccupied premises and reduce rental stock. This could lead to overcapacity in the insurance market. Whilst the Act may not come into effect until April 2018, insurers need to consider how to handle it now, including in proposal forms and reinstatement provisions. Risk management will be key challenge for Flood Re exclusions Risk management will be vital for all those excluded from Flood Re, the replacement regime for flood insurance, especially SMEs previously covered under the expired Statement of Principles. During Flood Re s lifespan of up to 25 years, premiums are projected to rise to risk-reflective levels. While Flood Re has been established under the Water Act 2014 and is due to go live in 2015, the devil lies in the detail of the secondary legislation currently being formulated. Social media use will reshape claims handling Social media management will become more central in handling/pre-empting claims. The speed with which news and commentary, both good and bad, spreads is rewriting claims management. Gone is the time for drafting by committee insurers need a major incident handling team which can provide immediate response advice. With nearly two billion active users on Facebook and Twitter, there are many opportunities for insurers, insureds and their lawyers to use it to their advantage. Riot compensation system faces reform Planned reforms could modernise the system for compensating individuals and businesses that have suffered criminal damage and financial loss as a result of riots. Subject to consultation, the Riot (Damages) Act Bill would cap payments to very large businesses and their insurers. It follows hot on the heels of our Court of Appeal success in the Sony warehouse riot litigation, where it was held that consequential losses are recoverable from the relevant police authority under existing legislation. 5

8 50 predictions In-depth analysis Developments Construction, Energy & Engineering David Bear Partner Bio Capital has been attracted to insurance by unusually benign loss records. Global engineering insurance premiums have consequently been very weak. This climate will change, ratios will get worse and margins will become too thin. More fracking activity could increase first-party claims Fracking investment and activity will probably soar in the UK following a new Infrastructure Bill allowing automatic access rights for shale exploration below a minimum depth, and the EU Commission only providing voluntary recommendations for granting licences. July 2014 also saw the opening of the 14th licensing round, making around half of the country available for exploration. Yet winning hearts and minds remains a challenge for investors. Insurers could see increased first-party claims based on subsidence and seismic activity and environmental liability issues. E-disclosure requirements will pose challenges The new e-disclosure approach was introduced in an attempt to streamline document-heavy cases, which includes many construction disputes. The new obligations are aimed at making disclosure less of a time and cost burden for SMEs during disputes, but could prove the opposite for construction practitioners and their clients when faced with sheer data volume, as outsourcing can be expensive. The widespread use of a variety of technology has also increased the volume of documents stored electronically which need to be disclosed. The wind will change Capital has been attracted to insurance by unusually benign loss records. Global engineering insurance premiums have consequently been very weak. This climate will change, ratios will get worse and margins will become too thin. While rates slowly recover, underwriters will be forced to place greater emphasis on risk selection, a technical approach and the careful authentication of losses. Successful players will still leverage off an impeccable claims service, but will need to engage further with brokers and mutual clients on pre-claim surveys, project monitoring, claim expectation management and the pursuit of contract certainty. Public-private partnerships uptake unlikely before general election UK industry and infrastructure needs to see greater use of Private Finance 2 ( PF2 ) to finance large energy replacement and transport projects, yet an uptake is unlikely before the general election. PF2 has not been widely used outside the education and health sectors since it replaced Private Finance Initiatives in December 2012, perhaps due to the credit crises and political uncertainty. Big decisions will need to be made about the country s power production after the election, but these could be accompanied by a discussion of whether PF2 is the best model. 6

9 50 predictions In-depth analysis Developments Directors & Officers / Financial Institutions Mark Sutton Partner Bio Courts could have the power to order directors to make compensatory payments where creditors have suffered loss as a result of the director s misconduct, which could significantly increase D&O exposure. Libor and Forex investigations continue to impact D&O policies Investigations into the Libor and Forex manipulation scandals continue to give rise to claims for defence and investigation costs. These may give rise to larger civil liabilities. These events are not expected to cause a hardening of rates, but an increased appreciation of the exposure of financial institutions ( FI ) to these kinds of regulatory risks may drive new business to the market. Directors & officers ( D&O ) and FI underwriters will more carefully investigate the involvement of insured lenders in Liborrelated agreements and products at the proposal stage before inception of cover. Directors face growing exposures Courts could have the power to order directors to make compensatory payments where creditors have suffered loss as a result of the director s misconduct, which could significantly increase directors & officers exposure. This proposal is part of the Small Business, Enterprise and Employment Bill, which aims to increase the corporate transparency and accountability of directors in order to improve confidence in UK businesses and promote growth. More D&O claims could be decided by the FOS The English court s decision over whether a director insured under a directors & officers ( D&O ) policy can be regarded as a consumer for the purpose of the rules of the UK Financial Ombudsman Service ( FOS ) is likely to have general application to D&O and professional indemnity policies. This could mean many more complainants in relation to such policies can have their complaints decided by the FOS. The relevance of other consumer legislation in such cases, such as the Consumer Insurance (Disclosure and Representations) Act 2012, may also be thrown into doubt. 7

10 50 predictions In-depth analysis Developments Technology, Media & Information Risk Hans Allnutt Partner Bio Liabilities and exposures faced by organisations suffering data breaches will tighten. In the UK, judicial awards of financial compensation for distress caused by data breaches will become more likely. Government initiative could fuel cyber risk insurance purchases The UK government has launched the Cyber Essentials accreditation scheme. This is designed to allow third parties to distinguish between organisations that are implementing basic cyber security controls from those that are not. The scheme has two levels of certification and both levels will oblige organisations to assess, maintain and develop their cyber security. In reviewing their cyber security, organisations should consider the possible consequences of a cyber security breach and adopt an appropriate risk mitigation strategy, which might include the purchase of a cyber risk insurance policy, providing access to specialist forensic and legal assistance as well as other crisis management experts. Cyber risk insurers won t need the draft EU Data Protection Regulation The high fines and compulsory notification requirements of the draft EU Data Protection Regulation have often been cited as a long-awaited trigger to demand for cyber risk (specifically data breach) insurance policies in Europe. But while EU legislators procrastinate, changes to regulatory guidance, common law, and contractual requirements will mean that the liabilities and exposures faced by organisations suffering data breaches will tighten. In the UK, judicial awards of financial compensation for distress caused by data breaches will become more likely. Wearable devices present a new wave of opportunity Smart watches could trigger a new electronic revolution, with Microsoft and Apple due to launch devices during the next year. The most intriguing aspects of these new products could lie in their biometric functionality. Apple s rumoured iwatch is predicted to be able to monitor heart rate, blood glucose, sweat and sleep patterns and Apple is allegedly seeking its certification as a medical device. This new technology may bring opportunities for insurers. Could these devices act as health insurance black boxes with rewards for healthy living? Could their sensors record crucial information surrounding a personal injury or traffic incident claim? 8

11 50 predictions In-depth analysis Developments Professional Liability The Court of Appeal has made it clear that non-compliance with procedural rules and court orders will not be tolerated. Trevor Chamberlain Partner Bio More change will follow the Jackson reforms Expect more change relating to the Jackson reforms as the courts try to balance justice with efficiency. Implementation of the reforms on civil litigation costs has brought dramatic changes. For solicitors conducting litigation, and their insurers, the renewed focus on case management and introduction of costs budgets has led to a rise in negligence claims. The Court of Appeal has made it clear that non-compliance with procedural rules and court orders will not be tolerated although it has somewhat moderated its previously draconian approach. Building Information Modelling to increase use of single project insurance Single project insurance may be the answer to risks that will be introduced by the next stage of Building Information Modelling ( BIM ). BIM involves the creation of a digital 3D model that is used in the design, construction and eventual use of the building. The current Level 2 target, where separate models are retained, does not seem to have significantly increased the risk profile of design consultants but Level 3 (with a centrally hosted model) raises a plethora of additional risks. The government s target is to make BIM Level 2 compulsory on public sector projects from 2016 and to move to Level 3 thereafter. Accountants face increased regulation A sea change in the regulation of accountants by the Financial Reporting Council ( the FRC ), responsible for prosecuting professional misconduct where it is in the public interest, has started to cause waves. We see new areas of FRC investigations, aggressive disciplinary proceedings and the risk of unlimited fines. Professional indemnity policies do not cover fines but expect substantial defence costs the usual rules of litigation do not apply and settlements are not straightforward. Whether the tougher approach of the FRC will filter down to lesser ICAEW (the Institute of Chartered Accountants in England and Wales) proceedings remains to be seen. Solicitors PI market faces uncertainty The solicitors professional indemnity market is set to experience further uncertainty. The market continues to need cover from unrated insurers, despite recent changes, including the closure of the Assigned Risks Pool. The Solicitors Regulation Authority has been seeking to reduce the mandatory level of cover to 500,000 from October this year despite substantial opposition and a big question mark over whether this will result in premiums being lowered. That change has now been blocked for this year by the Legal Services Board. This and other radical changes, including limiting runoff cover to three years, continue to be considered. 9

12 50 predictions In-depth analysis Developments Product Liability & Recall Expect greater focus on responsibilities of the various economic operators along the supply chain. Simon Pearl Partner Bio Food and automobile supply chains set for a shake-up After the horsemeat scandal, the Elliott review s interim report highlighted the risks posed by longer supply chains and the risk of food fraud. The final report is expected to focus on audit and inspection and clearer systems for crisis management. In the automotive sector, which pioneered clear control of suppliers, product recalls continue to dominate the headlines. Clear ownership and decision-making is needed when organisations assess potential product safety issues. During 2015, the General Product Safety Directive is likely to be replaced by a package of measures including a new regulation on consumer product safety. Expect greater focus on responsibilities of the various economic operators along the supply chain. Collective actions make GLO procedures revision more likely Collective actions have the potential to increase litigation exposure for businesses and insurers. So when the EU Commission produced proposals last year requiring Member States to introduce such systems within two years, all eyes were on how the proposals would be implemented. The key question was whether the procedures would require opt-in or permit opt-out as in the US, which fuels unmeritorious claims in the consumer field. France and Belgium have adopted opt-in laws, but the UK Consumer Rights Bill will allow claims for anti-competitive practices by a representative body on behalf of all affected consumers who do not opt out. Although limited to competition claims, such claims may increase pressure for a revision of the current Group Litigation Order procedures in product liability claims. Clinical trial regulation will simplify insurance requirements A new regulation on clinical trials of medicinal products should simplify requirements. The European Parliament approved regulation is expected to come into effect mid-2016 and will replace the Clinical Trials Directive ( the Directive ). It provides for more flexible indemnity and insurance obligations, as insurance premiums had sky-rocketed for industry sponsors of trials after the introduction of the Directive. The regulation simply states that compensation systems should be in place in the form of insurance, a guarantee or similar arrangement and provides that this will not be required where the clinical trial is considered low intervention providing it is covered by an applicable compensation system already in place. Medical device directives replaced by EU regulations The three existing European directives on medical devices, active implantable medical devices and in vitro diagnostic medical devices are in the process of being revised and will be replaced with EU regulations. Recent high profile litigation concerning PIP breast implants and prosthetic hips has highlighted the need for a strengthening of the current regulatory system in a number of areas. Among the resolutions approved by the European Parliament in April 2014 was the introduction of EU-wide compulsory liability insurance for manufacturers. There have been concerns expressed that this will not contribute to higher levels of protection, as insurance is not a substitute for appropriate safety measures. It is expected that agreement will be reached regarding the terms of the regulations in 2015 and they will come into force in the UK in approximately

13 50 predictions In-depth analysis Developments Marine, Aviation & Transport Anthony Menzies Partner Bio Crewless vessels would allow for greater cargo space and reduce the risk of human error and piracy by removing the need for the bridge, accommodation blocks and related facilities. But traditional piracy might be replaced by cyber piracy. Modern day ghost ships could face cyber piracy Fully automated drone vessels may become a reality within the next ten years as cargo and shipping companies seek to save costs and increase margins. These crewless vessels would allow for greater cargo space and reduce the risk of human error and piracy by removing the need for the bridge, accommodation blocks and related facilities. But traditional piracy might be replaced by cyber piracy, which would need careful consideration by the marine insurance market. Mega ships pose capacity and salvage challenges With more large vessels promised in the future, expect further challenges relating to insurance capacity and salvage. For Maersk s newly launched Triple-E, the approximate insured cargo value of an 18,000 TEU vessel could be as much as $365 million, added to which is the vessel value. Salvage is another issue: with very few ports having the necessary infrastructure, the removal of containers from stricken vessels could take many months. Arctic trading routes present risks and rewards The receding Arctic ice-pack could provide more direct shipping routes to carriers looking to save costs. But the harsh and extremely remote operating conditions of this region also present increased risks. When underwriting risks operating on Arctic trade routes, insurers need to factor in unreliable charts and navigational systems, concerns over non-standardised vessel design, lack of support infrastructure, salvage capability and qualified crews, and environmental matters. Cyber products will increase for marine and energy industries More insurance products will emerge in the marine and energy markets that cover cyber-attack losses, as the cyber risks facing the markets are increasingly receiving more attention. Globally, cyber-attacks on the oil and gas industries are predicted to cost $1.9 billion by As onshore and offshore facilities, vessels and ports become more reliant on computer automated systems, so they become more vulnerable to cyber-attacks. 11

14 50 predictions In-depth analysis Developments Reinsurance HMRC is likely to adopt an even tougher stance on the more aggressive tax relief schemes. We expect them to reject more claims for relief. Julian Miller Partner Bio HMRC will crack down further on aggressive tax relief schemes HM Revenue & Customs ( HMRC ) is likely to adopt an even tougher stance on the more aggressive tax relief schemes. We expect them to reject more claims for relief, while continuing to offer settlement opportunities, open only for a limited period, which will probably lead to the early crystallisation of claims. This trend is due to enhanced powers for HMRC to demand accelerated payment of tax where a similar scheme has been rejected for other taxpayers. Insurers are facing block notifications and aggregation issues and the position taken on each will have a direct bearing on the claims on reinsurers. Life reinsurance wordings to grow more complex The life reinsurance markets are seeing increasingly complex structures and legal input may be required from an early stage. Some of the contracts are closer to financial instruments and care has to be taken that there is an appropriate risk transfer and the provisions are coherent. (Re) insurers will need to ensure that their wordings are up-to-date should the Insurance Bill hit the statute books. Chinese drywall will present challenging liability claims Chinese drywall (gypsum plasterboard) and similar construction defect claims have generated lots of litigation in Louisiana, Florida and elsewhere and the (re)insurance issues will take time to resolve. Chinese drywall was imported into the US in large quantities in following a surge of home building. Upon becoming damp, the drywall may emit corrosive and odorous sulphurous gases leading to substantial repair expenses. Compared with asbestos the number of claims is limited, however, and the tail is expected to be short. 12

15 50 predictions In-depth analysis Developments Insurance Advisory Adrian Williams Partner Bio The FCA has already demonstrated its willingness to intervene, and is likely to do so more readily than previous regulators. Basic claims handling tasks moving to the Far East, but data transfer raises questions As insurers seek lower cost ratios, some are opting for radical change. So-called lift and shift initiatives, already adopted by two global insurers, are moving first-notification and other routine tasks from regional claims handlers to group administration centres in the Far East. But when even remote desktop access involves a transfer of data outside the EU, it is the data protection lawyers who are making these transformative projects possible, pushing the regulatory envelope and enabling teams on opposite sides of the world to work together. DAC Beachcroft is at the forefront of this challenging area of value creation for its insurance clients. MGAs, coverholders, brokers and intermediaries evolve to avoid conflicts of interest The Financial Conduct Authority considers the inclusion of managing general agent ( MGA ) business to create conflicts of interest within a broking group. We don t believe the brokers will want to sell these attractive businesses and expect instead that corporate governance in the intermediary market will evolve to avoid further regulatory intervention. We predict: clearer, more specific disclosure to policyholders; increased segregation of roles, revenues and information within the group, such as: directors serving either on broking boards or on MGA boards, not both; greater use of non-executive directors in intermediate holding companies; streaming of broking and MGA subsidiaries within a group so that common control is at holding company (not operational company) level. Mergers & acquisitions Conditions remain favourable for mergers & acquisitions in the Lloyd s and London insurance markets, although cautious regulators are taking time to approve transactions. The main drivers for deal activity are: strategic entry into Lloyd s, to access either traditional business or the high growth markets of Asia and Latin America; private equity s attraction to underwriting profit (in some lines of business) adding to insurers returns on investment while securities markets remain largely flat; corporate restructuring and divestment prompted by Solvency II capital requirements; intermediaries looking to build market share as the managing general agent market matures. Captive cat bonds could be an answer to Solvency II failing Many captive insurers are concerned that they will not qualify for the simplified capital regime designed for them in Solvency II. If the regulations do not change, there may be a solution in the Insurance-Linked Securities ( ILS ) market. Larger corporations could issue (re)insurance linked bonds to enable their captives to meet increased capital requirements. Captive catastrophe bonds have so far been too expensive to issue, but JLT Corporate Finance has broken new ground with Market Re, a protected cell company that enables smaller-cap ILS issues to be cost effective. We think that this is a business to watch. Expect more regular interventions under the Financial Conduct Authority Insurers and brokers who do not hold interim permission for any credit related activities must apply to the Financial Conduct Authority ( the FCA ) for a variation of permission before carrying on those activities. The FCA began regulating credit activities on 1 April 2014 and in July confirmed the findings from its review into insurance add-ons. Its conclusion is that there is a clear case to intervene in relation to general insurance add-ons. Greater regulatory scrutiny of conflicts of interests within insurance brokers can also be expected. The FCA has already demonstrated its willingness to intervene, and is likely to do so more readily than previous regulators. 13

16 50 predictions In-depth analysis Developments Medical Malpractice The NHS is likely to be smaller whichever political party gets into power. David Weatherburn Partner Bio Insurers will amend policy wordings in light of duty of candour post-francis Insurers will need to respond to the Mid Staffs Hospital scandal and Francis report ripple effect, particularly the duty of candour which will affect policy wordings, especially notifications, admissions and defence management. As part of the Patient Safety agenda, NHS bodies will have a positive obligation to inform patients of medical accidents with effect from 1 October. The rest of the sector will have to comply from April This will create the need to review wordings, particularly circumstance definitions, and when to notify. Inaction could result in enhanced potential for declinatures and/or prejudice to insurers interests. Post-election reduction in the NHS presents opportunities The NHS is likely to be smaller, whichever political party gets into power, with publicly owned assets servicing a smaller proportion of the nation s increasing appetite for care. This could open up opportunities for expansion of existing markets and the creation of new ones. 14

17 50 predictions In-depth analysis Developments Casualty Tom Baker Partner Bio Claimants solicitors will continue to try to move into areas which fall outside the portal s remit, as they lose the ability to recover success fees from the defendant, and fixed costs are introduced for claims commencing within the portal. NIHL claims volumes to remain high Insurers must remain alert to renewed attempts by claimants solicitors to target noise-induced hearing loss ( NIHL ) claims. There is no sign of the volume of NIHL claims reducing and growth plans recently announced by law firms suggest volumes will increase. Multi-defendant disease claims fall outside the scope of the low value protocol altogether and are outside the remit of fixed costs. There are also no fixed costs for singledefendant disease claims, if liability is not admitted within 30 days of notification and the claim drops out of the portal. Abuse claims sensitive and costly The volume of claims for abuse, neglect or harm to or by children or vulnerable adults is likely to remain high. Such claims fall outside the low value protocols and the regime of fixed costs, enabling claimants solicitors to recover costs at a much higher level than those for other personal injury claims. The last year has seen high-profile historic abuse claims feature in the media and the criminal prosecution of celebrities. The number of civil claims against celebrities, and their employers or organisations for which they were working, also increased. Prepare for fraudulent EL and PL claims As companies close through the recession, causing redundancies, speculative employers liability and public liability claims are likely. Defendants will benefit from obtaining documentary and witness evidence that supports a positive defence, as claimants solicitors may choose to withdraw the action and pursue other claims if they are presented with a lot of documentary evidence. Extended low value protocol to reduce claimants costs and increase bypass From 31 July 2013 lower value employers liability and public liability accident claims (ie those up to 25,000) have been required to be submitted using the portal process introduced for motor claims in Claims presented through the portal are subject to fixed costs, and remain within the process where liability is admitted within its strict timescale; where claims fall out of the portal process, they are subject to fixed costs (based on the stage of settlement and level of damages paid). The implementation of fixed costs inside and outside the portal, combined with the non-recoverability of success fees and ATE premiums, will see the costs paid to claimants solicitors reduced significantly; this is, as expected, seeing some claimants firms develop their expertise in using the rules to cause cases to fall out of the portal process, enabling them to seek significant levels of costs. Claimants solicitors expand beyond the portal Claimants solicitors will continue to try to move into areas which fall outside the portal s remit, as they lose the ability to recover success fees from the defendant, and fixed costs are introduced for claims commencing within the portal. Multi-defendant disease claims, which are not dissimilar to injury claims, fall outside the scope of the protocol. While there are a significant number of claims for noise-induced hearing loss, the pool of genuine claimants must be finite and the repudiation rate remains high. We expect claimants solicitors to move into other areas of disease litigation, together with clinical negligence claims, generating significant claims for costs. 15

18 50 predictions In-depth analysis Developments Motor The delivery of traditional legal services will come under the microscope, following the emergence of insurer-owned alternative business structures and external capital investment in legal services. Craig Dickson Director Bio Impact of Gill and Taylor reviews on Scottish claims Insurers will be keen to understand the implications of the Gill and Taylor reviews on the profile and expenses (costs) of claims in Scotland, and the potential impact of Scottish devolution on the implementation of the review. Key areas that will shape the future of claims, such as continuation of jury trial, conditional fee environments and the possible extension of the limitation period for personal injury would all have a direct effect on insurers indemnity spend. Comparisons will inevitably be drawn with the Jackson reforms in England and Wales, where the government continues to pursue several proposals to try to reduce motor insurance premiums for consumers within a short political timeframe. Greater scrutiny of traditional legal services The delivery of traditional legal services will come under the microscope, following the emergence of insurer-owned alternative business structures ( ABS ) and external capital investment in legal services (both venture capitalist cash injections and stock market flotations). Expect to see barristers and legal executives entering the solicitor market and considerable market consolidation, driven by price and sustainability. Insurers will watch the Transport Select Committee s interrogation of insurer-owned ABSs, in the context of the referral fee ban. Motor initiatives will be launched to lower motor premiums In England and Wales, the government continues to pursue several proposals to try to reduce motor insurance premiums for consumers quickly. Before the general election, expect to see several initiatives impacting the frequency and cost of insurance, including: the Competition and Markets Authority s final recommendations in relation to proposed remedies to its stated theories of harm arising in the private motor insurance market show that the landscape will change most for credit hire claims, with no changes proposed to repairs and total loss management. There will be further revision to a proposed consumer statement of rights and steps taken in relation to most favoured nation agreements; whiplash reform, to build on the current changes to reduce medical expert fees and tomove towards banning pre-med offers; revisiting the small claims track limit/introduction of a predictable damages regime. Role of technology will grow in motor insurance Technology will play a big role in reducing the number of deaths and serious injuries on Britain s roads (particularly among young drivers). This change will come from the increased use of telematics products that reward safe driving, as well as advances in vehicle safety, such as automated braking systems. Telematics could impact motor insurance in many ways from underwriting to claims and include both commercial and personal lines, as on-board black box devices and smartphone apps develop. As the telematics industry grows, issues of data ownership will be a point of focus. 16

19 50 predictions In-depth analysis Developments Cross Sector Issues Insurers and brokers will feel more industry pressure to collaborate and pool anonymised client data, in order to continue competing on a global scale. David Pollitt Partner Bio Big data will move up the agenda The use and role of big data will become a major discussion point, as insurers and brokers seek to find ways to monetise their claims data and use it to provide better services and products. Insurers and brokers will feel more industry pressure to collaborate and pool anonymised client data, in order to continue competing on a global scale. However, the expediency and feasibility of this move will be complicated by their curatorial responsibilities of third-party data, which will be heightened by the forthcoming EU Data Protection Regulation. Pension changes to shrink annuities market Insurers will lose control of a market worth up to 15 billion a year following Chancellor George Osborne s surprise shake-up of the pensions system in his latest budget. The changes, which allow all retirees to do what they want with their pension and scrap a system that made it compulsory for most of them to buy an annuity, dismantles a captive market for annuity providers, who will now have to compete for pensions business against other investment products. Some large annuity providers, however, could benefit from the changes in the pension rules, because the government s budget seems to incentivise saving, which would boost the fund management and investment businesses run by the same companies. Businesses increase focus on duty of care and business travel policies The economic recovery and the associated export drive will lead to greater global mobility among many UK companies which will sharpen the focus on their duty of care towards employees. Business travel insurance and crisis management assistance services, in the event of political incidents, natural catastrophes etc, in countries where employees are stationed, will become of greater interest to fast-growth companies, especially those with employees stationed in politically volatile regions. Catastrophe bonds will heat up and catalyse change in reinsurance market Catastrophe bonds ( cat bonds ) and other risk-linked securities will play an increasingly significant role in financing mega-catastrophes, as capital markets continue to flow into the insurance sector in search of high returns. Although cat bonds typically complement the reinsurance market by providing additional capacity, their increasing use and possible extension beyond catastrophe risks (their traditional domain) will pose questions to reinsurers, as insureds seek more innovative solutions to hard-to-insure risks. The growing use of cat bonds may in fact help catalyse greater innovation among reinsurers. 17

20 In-depth analysis New risks, new laws, new processes, new products: inspired innovation is surely the goal of every insurer that wants to prosper through this period of unparalleled change. Four thought leadership pieces provide a detailed analysis of some of the key topics. 18

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