Nick Pargeter Partner, BLM

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1 Impact of Civil Justice reforms on disease claims Nick Pargeter Partner, BLM construction & property corporate risks healthcare insurance & indemnity leisure public sector retail technology, media & telecoms transport

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4 ELTO The Employers Liability Tracing Office (ELTO) is set up to provide claimants and their representatives with quick and easy access to a central database of Employers Liability (EL) policies through an online enquiry facility, helping them to find their employer s EL insurer ELTO has replaced the previous voluntary Employers' Liability Code of Practice (ELCOP) tracing service, which was in place since 1999 The EL database (ELD) launched in April 2011 and contains all new and renewed EL insurance policies, policies from before April 2011 which have new claims made against them and policies that have been and will continue to be identified through the tracing service The ELD will also capture additional information such as Employer Reference Numbers (ERNs) for employers, which should make search results more thorough

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7 Mesothelioma Scheme Only those who cannot trace insurer or other solvent tortfeasor will be eligible Payment will be by age based tariff - set between the PWCA figures and common law value Scheme will be fault based Fixed costs will be paid ELTO membership compulsory for all insurers including those in run off Government has committed to delivering a mesothelioma specific pre action protocol

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9 J-Day implementation of Jackson s reforms scheduled for 1 April 2013 Balance 1 the ending of the recovery of success fees from defendants with a 10% uplift on general damages (for all personal injury and disease cases). Balance 2 the ending of the recovery of ATE insurance premiums with the introduction of a regime of qualified one-way costs shifting (QOCS) in favour of claimants. QOCS claimants should not generally be at risk of paying defendants costs, even if they lose or discontinue. The exceptions to this would be cases in which:- the claim is fraudulent, or it is struck out, or the claimant fails to beat the defendant s Part 36 offer. Additional 10% of damages for defendant failing to beat claimant s offer to settle

10 Mesothelioma Claims impact of LASPO Act 2012 & general damages uplift - as understood at 10 th October 2012 general damages will the claim conclude after 1 st April 2013? yes no general damages to increase by 10% per Simmons v Castle, CA 26 th July 2012 there should be no increase in general damages is it an EL claim for diffuse mesothelioma? yes no (ie it s a PL claim) success fee uplift recoverable if CFA entered into before 1 st April 2013 LASPO s44(6) ATE premium recoverable if policy entered into before 1 st April 2013 LASPO s48(3) trade union funding recoverable if entered into before 1 st April 2013 LASPO s47(2) additional liabilities in costs has the LC completed his his LASPO s48(1) review? yes no after 1 st April 2013 trade union funding will not be recoverable in these claims because it is not caught by the saving exception set out in LASPO s48 success fee uplifts and ATE premiums entered into before the s48(1) review is completed will be recoverable (the date of this review is not in any way linked to 1 st April 2013)

11 Extension to MOJ portal 25,000 EL/PL Disease? 30/45 days stage 1 period

12 Impact on disease claims for insurers

13 Defence costs recoveries BLM 1 July 2011 to 30 June 2012 Total recoveries settled Total costs claimed Total costs recovered % recovery 73 1,646, ,155, %

14 Claims settled before trial funded by CFA Recoverable Fixed Success Fee Asbestos related claims 27.5% Vibration White Finger 62.5% Noise induced hearing loss 62.5% Stress/RSI Claims 100% Any other type of claim 62.5%

15 1. Legal Expenses Insurance acts as a filter 2. Claimant lawyers will no longer recover a success fee from a defendant 3. Defendant lawyers will not (generally) be able to recover costs in successfully defended claims

16 New strategies required Commercial justification of defending a typical disease claim to trial cannot be made on the merits of an individual claim A claimant lawyer won t risk his fee if the chance of success is low but riskier claims will now be more attractive What if claimant representatives perceive a weakening of resolve of insurers and a tendency to buy-off disease claims?

17 Fewer NIHL claims More Stress/RSI claims Employers and insurers will reinforce their efforts to dispose of claims pre-litigation

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