The New Reforms for Obtaining Medical Evidence. Magazine. The

Transcription

1 The Issue 3 Winter 2014/15 Magazine The New Reforms for Obtaining Medical Evidence. Will they reduce fraud in Whiplash claims? Lord Faulks, Minister of Justice, explains his reasoning behind them. Also in this issue Combating Fraud By working together the industry can make progress in reducing motor claims fraud. Criminal Justice & Courts Bill Is Clause 56 the answer to reducing exaggerated claims?

2 WE RE THE COMPANY NO ONE S TALKING ABOUT. SECURE DOCUMENT & MEDIA STORAGE UK Coverage ISO27001:2005 Tel: info@drs-ltd.co.uk Web: Professional Indemnity Insurance for MASS members Tel

3 CONTENTS The MASS Insight Magazine Winter 2014 editor s note looks set to see yet more change for the personal injury industry. This edition focuses on some of the new reforms and proposals that the industry need to prepare for. Legal Marketing 15 Can your marketing strategy be improved? We consider how involving your staff can be beneficial. Feature Article 6 Whiplash Reforms & Expert Accreditation Lord Faulks outlines his proposals and why there is need for reform, with Industry stakeholders sharing their opinions on whether they will work. Criminal 16 Justice & Courts Bill We look at whether Clause 56 of the Bill regarding Fundamental Dishonesty is likely to be effective in reducing exaggerated claims. Coventry and 18 Others v Lawrence and Another With so much at stake, we consider the options that the Supreme Court may take. Scotland After 20 the Referendum This edition provides further comment on life after the referendum for Scotland. Feature Article Combating Motor Claims Fraud Working together as an industry can have a positive impact in combating fraud we look at how. 12 Foresight 21 Keep up to date with the latest developments on the key issues facing the industry and yet more change in MASS Matters 22 Rounding up a busy and eventful year and the MASS annual conference. Neither the Society nor the Editor accept any responsibility for the accuracy of articles or their contents or for the views and opinions expressed by individual contributors. Copyright Motor Accident Solicitors Society All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage or retrieval system without the prior written permission of the Editor. editor Roger Henderson contributors Jane Loney Jenny Braunton Phil Coupland design Paul Skuse azurdesign.co.uk advertising June Lowe Telephone office@mass.org.uk Motor Accident Solicitors Society St Bartholomews Court, 18 Christmas Street, Bristol BS1 5BT Telephone enquiries@mass.org.uk DX Bristol Printed at Doveton Press, Willway Street, Bedminster, Bristol BS3 4BG. Tel www. dovetonpress.co.uk 3

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5 Editor s Note Welcome to this festive edition of the Insight Magazine. As we look forward to the Christmas celebrations and quality time with loved ones and family, there will still remain many issues to return to after the festive break. Roger Henderson Editor, The MASS Insight Magazine The seemingly endless round of reforms and proposals for the motor personal injury industry continue, with perhaps the biggest current issue being the development of MedCo regarding the accreditation of medical experts. We feature a variety of opinions on MedCo from pages 6 to 11, including Lord Faulks who is spearheading these reforms. In April 2015 Clause 56 (on fundamental dishonesty ) of the Criminal Justice and Court Bill is due to take effect which will enable the Court to dismiss a claim if any element is proven to be dishonest unless it is satisfied that the Claimant would suffer substantial injustice. No doubt satellite litigation will abound as parties seek to clarify and interpret definitions on a case by case basis. The Chairman of MASS, Sue Brown, reports on the issues regarding this clause in more detail at page 16. There are plenty of challenges and headaches ahead for the industry but continued collaboration and engagement is surely central to addressing problems and removing the devil from the detail combating motor claim fraud and outlines the proposals for claimant solicitors to access some information from the claims underwriting exchange database (CUEPI) due for mandatory implementation in June Several of the topics mentioned above, and many others, were discussed at the MASS annual conference which took place in Manchester in early November with 200 delegates attending. An interesting perspective is portrayed by a member who attended for the first time on page 23. Looking back on 2014, the industry has dealt with reviews by the Transport Select Committee and Competition and Markets Authority; changes to the RTA claims portal and fees; the consequences of the Mitchell case (and the later softening by Denton and the 28 day buffer rule) and cost budgeting sanctions, to name but a few. All of this against a backdrop of a post LASPO landscape! So there are plenty of challenges and headaches ahead for the industry but continued collaboration and engagement is surely central to addressing problems and removing the devil from the detail. We will all have to await 2015 and the challenges it may bring, but for the moment, may I take this opportunity of wishing you all a very happy Christmas and peaceful New Year. One area where the motor personal injury industry seems united is the intention to eliminate and prevent fraudulent activity. At page 12, Donna Scully member of the Insurance Times Fraud Charter Board sets out her thoughts on 5

6 The MASS Insight Magazine Whiplash Reforms and Expert Accreditation Insight Magazine shares the opinions and views from some of the stakeholders involved in the negotiations. To read more about the Government s whiplash reform programme, go to: To read more about MedCo and to register an interest in providing medical reports under the new system, go to: 6 Tel

7 Whiplash Reforms and Expert Accreditation I am determined to create an improved system for the provision of medical evidence in whiplash claims. Many personal injury claims are genuine, but it is also clear that speculative, exaggerated or even outright fraudulent claims are still being made. T oo many claims are still being brought inappropriately, or on the basis of insufficient evidence. It is not right that people who cheat the system should get away with it and force up the price of motor insurance for everyone else. Between 2006 and 2012 there was a 60% increase in the number of personal injury claims made following road traffic accidents, whilst the number of road traffic accidents fell by 20%. This led to widespread concerns about the impact the cost of dealing with these claims was having on the price of motor insurance. Recognising these concerns, the Prime Minister hosted an insurance summit in February 2012 and committed the Government to take action to tackle this issue. The Ministry of Justice has subsequently consulted extensively on ways to address this problem in December 2012, May 2014 and, most recently, during September of this year. I have personally met with stakeholders from across the industry and I would like to thank you for your help developing and refining the whiplash reform programme. Lord Edward Faulks QC Minister of State for Justice On 1st October this year, we implemented new rules to: fix the costs for an initial medical report at 180; include a clear expectation that medical evidence will be limited to a single report; allow defendants to give their account of the incident to the medical expert where appropriate; discourage defendants from settling whiplash claims without a medical report confirming the claimant s injury; and stop experts who produce medical reports from also offering treatment to the injured claimant. The next stage of whiplash reforms will be implemented from 6th April next year. There will be a new accreditation requirement for medico-legal experts and medical reporting organisations (MROs) to help improve the quality of medical evidence and drive up standards, as well as a new system for obtaining initial medical reports via a new website, MedCo. Users will be able to use MedCo to search for individual experts or MROs It is not right that people who cheat the system should get away with it and force up the price of motor insurance for everyone else who can produce the initial medical report used in an insurance claim for whiplash. The tool will return a number of randomly generated results and the user can choose which one they would like to instruct. Any appropriately accredited MRO or qualified medical professional will be free to compete for work on the open market, but it will no longer be possible for claimant lawyers to source reports from an individual or organisation with which they have a financial link. This will deter those aiming to cheat the system while ensuring that those with genuine injuries have the comfort of more robust medical evidence. However, this is not just about breaking financial links. The Government is also keen to address the potential for perverse incentives which can arise out of close relationships between experts and businesses operating in this market. This is why we are, through MedCo, removing potential conflicts of interest from the system. I must stress though that the system will ensure that both individual experts and MROs will be provided with fair opportunities for selection. I firmly believe that improving standards of service for genuine claimants, successfully tackling the spiralling costs of civil litigation and reducing the number of unnecessary whiplash claims will be of benefit to everyone involved in this sector. The Government s reforms will result in better quality medical evidence at a fair cost which will benefit not only those involved in the claims industry but also drivers through lower motor insurance premiums. 7

8 The MASS Insight Magazine How will MedCo operate and will it achieve the desired outcomes? Simon Margolis Group Chairman, Premex Group The Context It is now well over 12 months since the Government responded to its first consultation on medical evidence relating to Whiplash claims. Since that point various stakeholders have worked under the auspices of the MOJ with the objective of formulating and implementing changes to the process by which medical evidence is obtained in cases of this nature. The Problem The underlying issue that it was felt needed to be addressed related to the perception that there is a lack of independence in the current process and that, more specifically, there might be unhealthy links between instructing parties and experts that might influence the opinions those experts might be offering. Similarly there was a concern voiced that reports were of variable quality and potentially were not of sufficient robustness to root out and challenge fraud. The Solution Broadly speaking, the proposals for addressing the above issues can be split into: 1. The accreditation, auditing and, where indicated, sanctioning of individual experts or MRO s. 2. The random allocation of experts or MRO s to solicitors, or others using the MedCo system software, when a medico legal report is required. As ever, much of the devil will lie in the, as yet undefined, detail around exactly how all of the above will work in practice. The underlying principles for both elements of a new process appear to make sense but until implementation takes place and there has been sufficient time for users, both legal and medical, to get used to the new world and for relevant MI to be gathered and analysed it will not be possible to assess whether the stated political objective of reducing the overall number of whiplash claims and, more specifically, discouraging inappropriate behaviours will be achieved. The Challenges The formation of MedCo and the introduction of a completely new process for obtaining medical evidence will herald the most significant changes in this element of the legal process in living memory, if not ever. This will inevitably bring with it a number of challenges as enforced changes to longstanding practices are rarely greeted with enthusiasm and often precipitate behaviours designed to circumvent such evolution. There is little reason to believe these changes will not have such an effect and the greatest challenge for MedCo may well lie in ensuring the new process is utilised on all relevant cases as intended. Other important considerations that have exercised the thoughts of the MOJ working groups to a considerable degree have included competition law, the maintenance of some element of choice for Instructing parties as well as the preservation of the operational efficiencies that currently exist, whilst at the same time achieving the fundamental and underlying objective of addressing the perception that experts may sometimes not be sufficiently independent of one or other party. There is school of thought that there are some mutually exclusive elements at play that mean achieving all of the above may conceivably be a circle that cannot be squared which may have some credence and will certainly mean that the finer details as to how MedCo will operate needs careful consideration. Will it Work? In a nutshell I have little doubt that creating an environment where experts will be more accountable for what they do and say in medico legal reports will lead to a behavioural change in those experts. This will be particularly the case for any who may currently be behaving inappropriately, whether that be by producing low quality reports following cursory assessment or the equally unpalatable practice of offering a prognosis period for recovery in excess of what might reasonably be expected. The introduction of mandatory accreditation, audit of all reports, along with the threat of sanction will The formation of MedCo and the introduction of a completely new process for obtaining medical evidence will herald the most significant changes in this element of the legal process in living memory, if not ever 8 Tel

9 Whiplash Reforms and Expert Accreditation create an environment where experts will know the above behaviours will not go undetected, analogous to the impact that average speed cameras have had on motorists. This can and will reduce the overall cost burden of these types of claim but a note of caution is warranted. The type of injuries being assessed are notoriously difficult to categorically prove or disprove. Whilst it is right and proper that experts should be robust and honest when assessing these injuries, and should be held accountable if it is demonstrated that they haven t been, it is less realistic to surmise that accreditation and audit will confer on them a new found ability to be expert fraud detectors, able to categorically state that claimants did not and could not have suffered any injury whatsoever. The second element of the new world, Random Allocation, is arguably an adjunct to the core proposals around accreditation, audit and sanction of the individual experts. Whilst this part of the reforms is primarily intended to facilitate the breaking of the link between instructing parties and individuals or MRO s with which they currently may have an unhealthy relationship, the degree to which this element of the reforms will translate in to a reduction of the overall claims cost burden is less clear in my opinion. Even if an instructing party were to instruct an expert, or indeed an MRO, with which it was linked (which in theory shouldn t happen if, as anticipated, those links will have to be disclosed when signing up to MedCo), then the individual reports will still be subject to the audit outlined above and, by extension, any inappropriate behaviour in relation to those reports will be clear to see. For that reason, whilst intuitively the Random Allocation approach will affect the ability of an instructing party to always instruct the expert of their choosing (which, it s important I am asked whether the proposed reforms and principles of MedCo may or may not be a positive step for the claims industry in improving the process for whiplash claims and the reduction of fraud? On the face of it, that is a simple question but opens up a plethora of other questions. to note, does not necessarily imply bad behaviour), it is less clear how much this element will reduce the cost burden over and above that which is going to be achieved by the aforementioned accreditation, audit and sanctioning of experts preparing reports, be that via direct instruction or MRO. Summary I think there can be little doubt that the formation of MedCo and the implementation of plans around Accreditation, audit and sanctioning of experts and MRO s can and will have a positive impact on some of the less acceptable behaviours that, whilst not endemic, currently exist. The rationale for Random Allocation is understandable however this particular element of the forthcoming changes has the potential to disrupt existing markets and create additional administration and inefficiencies that don t currently exist. As ever, the devil will be in the detail and this particular aspect will need to be implemented with careful consideration to ensure the benefits are not outweighed by any disadvantages that may be an inevitable consequence. David Johnson. President of FOIL What is the basic proposition behind MedCo and the basic principles on which it is based? Improvement of expert medical reporting in the whiplash arena, through severing unholy alliances between instructing legal representatives, hand-in-hand with a system of expert accreditation and monitoring of expert reports, sanctioning experts found to be putting forward reports that simply do not stand up to scrutiny. How is that to be achieved? Via allocation of expert witnesses through an IT system that filters out those experts/ MROs that have a link with the legal representative and then produces a short list of experts/mros who may be instructed, via a random allocation process. The accreditation piece will then be managed by a company tasked with collating and interrogating expert reporting MI in order to identify bad behaviours and apply sanctions where those behaviours exist. Is that achievable? It is certainly challenging. The filtering out of experts/mros linked to the requesting representative can only be achieved through declarations of interest. In the case of the small minority of representative who might put undue 9

10 The MASS Insight Magazine The stated objective of the whiplash reform programme is to reduce the number of speculative and fraudulent claims, saving money for insurers who would pass those savings on to consumers. pressure on an expert to express a certain opinion, or those experts/ MROs who might allow themselves to be so pressured, one wonders whether they will truly have any qualms about making false declarations. If they do not, MedCo must have the ability to receive information and investigate issues around potential false declarations, absent which these perceived unholy alliances will simply not be quelled. As regards the accreditation piece, having the power to analyse data and withdraw accreditation is one thing but is MedCo really going to have the gumption to prevent experts from continuing to report on whiplash cases if their diagnosis rates differ substantially from the statistical norm? If so, will MedCo be challenged? And if the answer to that is yes, how is MedCo likely to fair? Without robust data, good data mining systems and tight rules around what will or will not be recognised as amounting to poor behaviour, one can see that there will be some challenging aspects to the MedCo day job. If those challenges are overcome, will we be left with an improved system as a consequence? That rather depends on how highly you rate the system that we have at present. There will be those that defend the existing systems as already sufficiently robust, with expert reporting effectively governed by CPR 35 and instances of abuse in the system to be so far in the minority as to be of no real significance. Others will point to the rate of occurrences of whiplash in the UK by comparison to our European neighbours and assert that whiplash is recognised far too often. It is likely that the MedCo project will bring about some change in approach, most likely taking the form of a variance in diagnosis rates and prognosis periods. Whether that will amount to an improvement in the system will be a very subjective question. And what of fraud? Is MedCo actually aimed at reducing fraud? If you included the CUEPI piece as a part of the MedCo project then certainly there will likely be gains there that assist in reducing instances of fraud. Unduly influencing an expert so as to achieve a more favourable financial outcome to claim could certainly be said to come under the fraud umbrella as well and if you ascribe to that, then a properly composed and empowered MedCo would certainly seem to have the potential to make a difference. In summary, the jury is still very much out on MedCo. There are differing views as to the prevalence of the problems that MedCo is intended to address. There are differing views as to whether the impact of MedCo will represent a positive step forward or not. However, what is clear at this point is that there are challenges around whether MedCo will have any impact on those problems in the first place. The MedCo project is approaching a crucial phase, with the detail around both the workings of the expert allocation system and the workings of accreditation coming sharply into focus. Getting those elements right will be absolutely key to MedCo s success. As with all things though, the devil will be very much in the detail. Susan Brown MASS Chairman In the same way as insurers always say that they want to pay fair compensation to genuine claimants, claimant lawyers will always say that we want to see fraudulent and speculative claims stamped out. I am sure these views are genuinely held by the respective camps, and there are some claims which we would all accept as genuine and others we would all accept as fraudulent. However, ask a roomful of insurers, and a second roomful of claimant lawyers, to look at 100 whiplash injury claims, and I d be fairly certain the insurers would find more fraudulent or speculative claims than the claimant lawyers. The better elements of these reforms are aimed at assisting both parties in accurately identifying which is which. MASS believes the accreditation process will improve the system. Firstly because it will focus the minds of the medical experts on the importance of the job they are doing. The average GP expert doing medico-legal reports under the current system can be forgiven for thinking that what he is being asked to do is churn out the same standard pro-forma report in every case. The intention is that, in gaining accreditation, the expert will have to demonstrate an understanding of the CPR, and clinical experience of and/ 10 Tel

11 Whiplash Reforms and Expert Accreditation or specialist training in, soft tissue injuries. Most importantly, the knowledge that in order to maintain their accreditation they have to meet certain standards and not significantly deviate from the average in terms of, for example, prognosis for recovery or recommendation of rehabilitation across the totality of the reports they prepare. This is likely to focus their minds on the need to consider, examine and assess each claimant individually. Secondly, for claimants, the knowledge that he will have to attend an examination with a specialist doctor experienced and trained in identifying genuine soft-tissue injuries is likely to deter speculative or opportunistic claimants. What this is really about is changing perception. At present there is a sector of the public who believe there is nothing wrong with pretending to have a whiplash injury when you do not, because everyone does it. That perception has to be demonstrated to be wrong. The second positive reform is the discouragement of pre-med offers. The October 2014 amendment to the CPR introduced a rule that an offer made at any stage will automatically include the cost of obtaining a medical report as well as solicitors costs, so insurers can no longer make these savings by making pre-med offers after a CNF has been submitted. This is certainly a positive development. MASS experience is that when you speak to claimants three or four weeks after an accident, many of them will say that as they had symptoms for only a week or so and are fine now, they do not want to make a claim. However it is likely that if two weeks after the accident the insurers made them an offer of 1,500, they would have accepted that offer. There can be no doubt that the practice of insurers in making pre-med offers has been a major factor in building a public perception that a payment for whiplash injury in a rear-end shunt is as much of an entitlement as a payment for vehicle repairs. The difficulty with pre-med offers is that dealing with them within the CPR does not prevent them from being made before a CNF is submitted, so it remains to be seen whether the practice will cease altogether. Thirdly, I believe that when claimant lawyers are able to access their potential client s claims history, it will become more difficult to bring a fraudulent claim. MASS does have concerns about the potential consequences of some other elements of the reforms, in particular the proposed system of random allocation of medical experts or medical agencies, and also at the speed at which they are being introduced, particularly against the background of all the other changes we have seen over the past two years. However MASS believes that the elements of the reforms referred to above are a positive step, both in preventing fraud and discouraging opportunism, and in enabling genuine claimants to present their claims properly, supported by valid and meaningful medical evidence that will give claimant lawyers, insurers and the courts the information they need to assess the appropriate level of compensation. What this is really about is changing perception. At present there is a sector of the public who believe there is nothing wrong with pretending to have a whiplash injury when you do not, because everyone does it. That perception has to be demonstrated to be wrong. Soft tissue injury to the neck or back is commonly sustained in RTAs, and is a real injury that causes short or longterm disability in many people, and it should be only those people who genuinely suffer this injury that are entitled to compensation. 11

12 The MASS Insight Magazine Combating Motor Claims Fraud. Can the Industry Succeed? 12 Tel

13 Combating Motor Claims Fraud I recently spoke at the 2014 MASS Conference and in doing so had cause to revisit the battles fought to convince all parties that the insurance industry could work collaboratively with the claimant community to reduce fraud. Donna Scully Partner Carpenters Solicitors. Past Chairman of MASS A s chairman of MASS at the time, we started the process in 2010 by setting up the MASS Motor Fraud Forum having been frustrated at how some described the relationship between defendant and claimant sides on the issue of fraud as Russian roulette. I always believed that there was huge common ground between the parties because fraud benefits nobody and both sides want to see it reduced and fought better. We felt that anything that assists in rooting out and preventing fraud as early as possible should be embraced. It felt like a logical, overdue and achievable step and as such after instigating initial industry discussions, MASS has been lobbying the ABI for over 3 years to effect that change. I understood it was a quantum leap for the ABI and its members to trust and embrace something collaborative where both sides have to open up to each other more. Being invited to join the Insurance Times Fraud Charter as the first claimant representative in 2012 opened doors to discuss our views, and then recently the Transport Select Committee recommended that the MOJ look at how both sides could fight fraud more collaboratively and that the MOJ should become involved in making that happen. After considerable discussion and negotiation, we are now at the stage of building something that will be the start for reaching our ultimate aim of combating the opportunistic fraudster. The ABI has facilitated information from the Claims Underwriting Exchange database for personal injury claims (CUEPI) to be provided to claimant solicitors. Based on the principle of askmid, claimant solicitors will be required to search askcuepi which will provide them with the number of PI claims (not just RTA) that a potential client has had within the last 6 years. This search will be mandatory and the software will produce a unique reference number which will have to be put onto the CNF when submitting the claim. If the client does not wish this search to be made then the solicitor will not be able to take the claim on. An annual licence fee will be charged to the claimant solicitor similar to the askmid fee which has been kept to a minimum as the industry are sharing the costs evenly for this process. Whilst I appreciate that this is yet another cost for claimant solicitors when margins are extremely tight, it will only take one potential fraudulent client to be identified (and therefore a claim not pursued) to more than pay for this relatively minimal annual fee. At present we understand that this process will become mandatory in June 2015 subject to it being finished and workable. 13

14 The MASS Insight Magazine Being invited to join the Insurance Times Fraud Charter as the first claimant representative in 2012 opened doors to discuss our views, and then recently the Transport Select Committee recommended that the MOJ look at how both sides could fight fraud more collaboratively and that the MOJ should become involved in making that happen. I have heard people say it looks like we are getting very little by starting with number of previous accidents and I understand that view. MASS always advocated that this is just the beginning. It has taken over 3 years to get to this stage and this is a positive step. Once it is up and running and working well, my hope is it will be extended beyond just previous accidents. For that to happen it is important that we continue to build trust between both sides and the Insurance Times 2014 Fraud Survey should go a long way to promote that. It demonstrates that the claimant community do try to weed out fraud themselves but are desperate for access to more sophisticated data sharing to know if the Insurer has any information on fraud so that we don t find ourselves inadvertently acting for fraudsters. The survey also shows that the majority of the claimant community is in favour of courts having the power to throw out an entire case where the claimant is fundamentally dishonest which may surprise some insurers. If the industry works together better, we will see a reduction in opportunistic fraud, it has been too easy for them for too long. Our message is clear to fraudsters, you are ruining it for innocent people and we will do all we can to stop you. Let s hope we achieve that and more together over the next few years. I recently attended the final Insurance Times Fraud Charter meeting when they unveiled their Fraud Report Louise Ellman MP, Chair of the Transport Select Committee (TSC) has given an interview in the Report and she attended the meeting to speak to us. Mrs Ellman explained that the TSC had started looking at motor insurance premiums back in 2010 because members of the public were telling them that their motor premiums were too high. So their agenda was to look at the rising cost of motor insurance premiums. Whilst she talked about how important it is to fight fraud more collaboratively, they always had an eye to fairness for the law abiding motorist who pay their premiums, and to ensure that the genuine claimant gets a fair hearing. We all want that. As we know, the TSC have conducted oral hearings since 2010 calling evidence from parties on both sides of the fence and they have published 4 reports. They look to be objective and to ignore any selfinterest from either side. However, the committee continue to have considerable concerns about cold calling and why nothing can be done about it, and that LASPO does not appear to have totally eradicated referral fees possibly due to the introduction of alternative business structures (ABSs). Whilst the TSC are supportive of the MOJ plans to improve medical assessments, Mrs Ellman expressed her concerns of the speed at which this was being undertaken and that considerable care should be taken to ensure that it is practical and workable rather than rushed in and ineffective. It is refreshing that at last there appears to be the recognition within the industry that fraud has been rising at an alarming rate and that it must be tackled. The challenge now is to focus the necessary will and determination to ensure that the industry does all it can to support the genuine motorist and innocent accident victim by making it clear through education and collaboration that fraud will not be tolerated. It is important that we continue to build trust between both sides and the Insurance Times 2014 Fraud Survey should go a long way to promote that 14 Tel

15 Combating Effective Motor Legal Claims Marketing Fraud How Effective is your Legal Marketing Strategy? Jane Loney Executive Director, MASS Now more than ever before, marketing should be key business strategy for legal practitioners. With the significant changes in recent years within the personal injury industry, some firms have been struggling but others seem to have thrived - Why? In most cases it will be down to business foresight and planning but in others, it could be as simple as having good or poor to non-existent marketing strategies. We all know traditionally legal firms have largely concentrated on the marketing tools of advertising and word of mouth but with increased competition and the significant influence of the internet and social media, marketing strategies need to change to encompass not only these new forums but concentrate on providing value, building trust and improved communication with clients. Consequently, law firms and their staff need to share knowledge, give useful information and make sure their clients feel valued. In this changing world, both in legal matters and business development, it is important for firms to increase their knowledge and that of their staff in how individually and collectively they can market their services and that of their firms. That is why MASS Training not only provides legal training courses but also ones to assist staff develop their own marketing skills and consequently their firms reputation and how to access the significant market open to them. For example, having an online presence is pivotal your firms name needs to be out there. However, building an online presence isn t just about marketing yourself to potential clients. Networking with other solicitors can be valuable in building a name for your firm and the thinkers within it. Everyone knows social media is an effective tool, but it s important to spend your time where it matters and where it will have most impact. So which of the now many forums are most effective and what do you want to achieve through these mediums? Understanding the principles and what is most effective are key elements which all staff can benefit from and MASS Training can assist through our webinars that are designed to show that all staff within the firm can assist with your overall marketing strategy. For example, in the Cross Selling webinar, delegates will learn the importance of promoting the service the whole firm can provide (and not just PI for example); practical situations and opportunities where they could cross sell ; building client relationships and adding value all very important skills to have. Just by improving what your staff say and how they develop relationships with their clients can have a huge impact to the firms reputation and ultimately an increase in business. The More Enquiries from your Website webinar assists in understanding if your firms website produces any new leads and if so, how can this be improved; how to be most cost effective with your website management and enquiry follow up procedure, are just a few elements that are covered. Again, all valuable information to ensure that you are maximising the benefit from probably one of your most important marketing tools. Marketing should not be just for the marketing department or the senior partner the whole firm can and should be involved. But ensuring the right message is portrayed and in the correct manner is vital so that your marketing strategy is not only cost effective but maximises the business opportunities available in this ever competitive world. For more information on how MASS Training can assist, contact Phil Coupland on or phil@masstraining.org.uk and go to our website

16 The MASS Insight Magazine Criminal Justice and Courts Bill, Clause 56 Insurers seem to think it is easy. A claimant is either wholly genuine or fundamentally dishonest, and there are no shades of grey. Susan Brown Director, Prolegal But in over 20 years of representing claimants, I have seen far more grey than black or white not because claimants are intentionally dishonest, any more than insurers are dishonest in seeking to reduce the amount they pay out to a minimum. One reason is that an adversarial system tends to drive both parties to present their cases in the most attractive light, and another is that some people find it harder to recover from the effects of injury or illness than others, whether pursuing a claim or not. This is what worries me about a change in the law that requires a court to dismiss a claimant s entire claim if, on the balance of probabilities, the court finds that the claimant has been fundamentally dishonest in relation to any aspect of it. The change in the law comes against a background of reported cases where the courts have accepted defendants submissions that the claimant has presented a grossly exaggerated claim, but have still awarded damages for the genuine element of the claim. Until the Supreme Court decision in Fairclough Homes v Summers, the courts took the view that they had no power to strike out a claim in its entirety. The Supreme Court held that it did have that power under CPR3.4(2), and that the test in every case must be what is just and proportionate. The Supreme Court also raised a number of important points that highlight the weapons available to defendants faced with fraudulent claims that will in practice enable them to punish claimants very effectively without any need for a change in the law, including effective use of Part 36 or Calderbank offers that in practice will leave claimants who are held to have pursued unreasonable claims with a costs liability that exceeds the amount of damages, and of course proceedings for contempt of court. Accordingly the current law is that the court can strike out a dishonest claim where it is just and proportionate to do so. When the Criminal Justice and Courts Bill comes into force, the law will be that the court must dismiss a dishonest claim unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed. Exactly how the court will interpret this shift in the balance in practice is difficult to predict, but it is highly likely that, particularly in the fast track, claims will be dismissed and claimants will be ordered to pay defendants costs. In Gosling v Screwfix, believed to be the first case where a claimant was held to have been fundamentally dishonest in the context of QOCS protection, the dishonesty was exaggeration of the extent of injury and duration of symptoms, which the court held was fundamental to the claim, injury being at the heart of any personal injury claim. Fairclough Homes neatly demonstrates how skillful the courts can be in performing the balancing act needed to deal with cases justly, but the reality is that the playing field on which the majority of personal injury claims are fought is not in the Supreme Court or the Court of Appeal or even the High Court. Many of them never find their way near a Until the Supreme Court decision in Fairclough Homes v Summers, the courts took the view that they had no power to strike out a claim in its entirety court. In most cases the battle is fought between insurance claims handlers or the solicitors instructed by them, and claimants and their lawyers. And on that ground claimants are faced with stark choices. An allegation that may or may not ultimately have persuaded a judge to dismiss the claim, backed with a low P36 offer, can be very powerful in presenting a claimant with two alternatives: take the offer, or fight on faced with the risk that you will not be believed by a judge, will be found to have been fundamentally 16 Tel

17 Fundamentally dishonest? Not necessarily. dishonest, and you will receive no compensation and be faced with a substantial bill for the defendant s costs. No matter how confident the claimant lawyer is that their client is presenting an honest claim and has good prospects of defeating the allegation, he has to give clear advice on the risks the client is running. When the Criminal Justice and Courts Bill comes into force, the law will be that the court must dismiss a dishonest claim unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed Claimants and their lawyers will have to be very alert to the risks of introducing elements into the claim that could be regarded as exaggerated or unreasonable and therefore dishonest. We will have to consider very carefully what to include in schedules of loss, and whether there may be any question over whether the symptoms complained of are all directly accident related or whether they can be challenged as malingering, exaggeration, functional overlay, illness behaviour or any of the other labels attached to symptoms that doctors cannot understand or explain. Conditions given labels such as chronic pain, fibromyalgia, somatoform disorder, chronic fatigue, are often treated with suspicion in personal injury claimants, but this type of problem is common and is not always, not even usually, linked to financial compensation, and claimants should not be regarded as dishonest merely because doctors cannot explain their symptoms in simple clinical terms. Times are already difficult for claimants and their lawyers. I predict they are about to get harder. We provide a nationwide case management and treatment service across the full range of injuries from minor soft tissue to life changing catastrophic injuries. We can also organise medico legal reporting. We leave you free to manage the litigation process. First for services First for medical excellence First for holistic care First for keeping you in control First for value For more information call Daren Pemberton on Daren.Pemberton@hcml.co.uk Readers Rant.. Don t agree with the article you have just read? Want to have your say? We d love to hear from you. Please us at: enquiries@mass.org.uk or call us on

18 The MASS Insight Magazine Coventry The Death of Additional Liabilities? Adam Fenton Team Leader, MRN Solicitors Imagine you have been dealing with a sizeable matter for the last few years which has recently settled. As no doubt is always the case you have run the file magnificently and your client is delighted with the result. From a professional point of view you are particularly pleased with your handling of the funding of the claim. On this occasion you are confident that no one can challenge your entitlement to additional liabilities. Now imagine that despite the above, your additional liabilities were deemed unrecoverable through no fault of your own. This is the door which has been opened by the Supreme Court In the recent case of Coventry and others v Lawrence and another (No 2) [2014] UKSC 46. The Claimant was successful and was awarded 60% of their costs, however significant concerns were raised regarding the amount of the same. The Costs claimed were slightly over 1, loosely broken down as 398,000 base costs, 319,000 success fee and 350,000 for the ATE premium. While the base costs of 400,000 were described as regrettable and disturbing the fireworks come in relation to the Court s consideration of the additional liabilities. Summarising, the Defendant argued that the significant amount of the additional liabilities represented a barrier to the Defendant s access to justice and their right to a fair trial as enshrined under Article 6 of the European Convention on Human Rights. As a result of this argument the Supreme Court denied any payment of the additional liabilities pending the matter being relisted for a further hearing. It is understandable, given the potential billions of pounds on the line, that the case has been at the forefront of recent debate. However no decision has yet been made deeming additional liabilities unrecoverable. In fact the Judgment itself indicates that even on relisting it is possible that no conclusion may be reached. This is likely to rumble on for some time. Inevitably speculation has been rife as to what course of action the Court is likely to take. With so many vested interests it is difficult to separate the genuinely considered opinion from hyperbolic speculation, however views tend to fall into three main camps: Firstly it is possible that the Defendant s argument is fundamentally correct. As a result the Court may be left with little option but to declare the now outdated 1990 and 1999 Acts as incompatible with Article 6 of the Human Rights Act. This would result in the Court having to effectively overturn the sections of the Acts which allowed for the recovery of additional liabilities. Significantly a finding along these lines would not impact on the recoverability of additional liabilities between parties. However, were a Judgment made on this basis, parties who had paid additional liabilities in the past would potentially be in a position to seek remedy from the Government, effectively for incorrectly interpreting the legislation and allowing the legal sphere to rely on the same; happy Christmas to the taxpayer Secondly, it is possible that the Court may deem additional liabilities as unrecoverable, and provide that incorrectly claimed additional liabilities within a case is justification for the reopening of the matter inter partes. This would be both a logistical and a financial nightmare. Much of the caselaw regarding the possibility of reopening concluded matters runs contrary to the notion that cases While the base costs of 400,000 were described as regrettable and disturbing the fireworks come in relation to the Court s consideration of the additional liabilities 18 Tel

19 Coventry The Death of Additional Liabilities? The final possible result of the rehearing is that the Court finds that additional liabilities were correctly recoverable, what a welcome anticlimax for many this would be will be reopened simply because a fresh Court has come to a different decision to that which has been previously made. In brief, the Court will only allow a case to be reopened in exceptional circumstance, arguably a breach of one s human rights satisfies this demand. If the Court s Judgment is along these lines ultimately the client s costs are their own and depending on the terms of the Client s CFA or ATE premium, the individual, the firm or the insurer will have to bear the burden of any repayment. The final possible result of the rehearing is that the Court finds that additional liabilities were correctly recoverable, what a welcome anticlimax for many this would be. The arguments as to why the Court should not retrospectively disallow the recoverability of additional liabilities are based around either the injustice this would cause to the Claimants, (a breach of their own human rights?), or are based around the impracticality/inconsistency of a finding to the contrary. Possibly the most revealing evidence in support of the likelihood of this outcome is the actions of insurers themselves, who as it stands have been reluctant to rely upon any Coventry based argument in support of the none recovery of additional liabilities. The case is due to be heard in February 2015 until then perhaps it won t be the sound of jingle bells keeping the legal profession up at night Merry Christmas! MASS GOLF DAY. A DATE FOR YOUR DIARY To the golfers amongst you the MASS Golf Day will be held on Thursday 25th June 2015 and will return to the much loved and challenging course at the Menzies Welcome Hotel Spa and Golf Club, Stratford upon Avon, Warwickshire. Look out for more details early next year, but in the meantime, book this day out! 19

20 The MASS Insight Magazine The historian David Marquand wrote in shortly before the first meeting of the Scottish Parliament that: Britain is sleepwalking into a new constitutional revolution Elaine Russell Partner Irwin Mitchell, Scotland MASS Regional Co-ordinator Even Marquand would have struggled to trace the extraordinary shift in constitutional arrangements - and speed of change - which the recent referendum on Scottish independence has ushered in. For those of you who may have holidayed recently in Outer Space the result of the Scottish Referendum was very close. The result was 55% No and 45% Yes. Rather than putting to bed debates around independence / further devolution - the period since the referendum (one in which a turnout of 84.7% was recorded) has witnessed a revival in public interest in democracy and governmental institutions as vehicles of radical change. Far from bringing a sense of finality to the question of Scottish independence and to the entirety of the debate on devolution - the recent referendum has made one opaque political and constitutional environment even more complex and difficult to map. For the SNP the post- Salmond era which formally began with the election of the former solicitor Nicola Sturgeon as leader in November has without doubt - in the short term at least - emerged as the dominant political party in Scotland. On 19th September the Prime Minister announced that Lord Smith of Kelvin had agreed to oversee the process to take forward the devolution commitments on further powers for the Scottish Parliament. For all major Scottish political parties the Smith Commission is now the ground upon which economic, political and legal change will be debated. Scotland has moved on from the referendum. It is a fact that the Commission will draft the most significant alterations to the UK constitution since the devolution settlement. As I write the Commission has proposed that the Scottish Parliament be handed direct control over billions of pounds of income tax and welfare benefits. Inter alia - the Commission has - by agreement with the Westminster parties concluded that the Scottish Parliament will control: The 3 billion pound welfare budget Air passenger duty Income tax powers (with caveats) As Alan Tierney (UK constitutional law association) pointedly argues- the Smith Commission process is the dominant forum for change. Rather than witnessing bottom up change (change driven by the protestors who took control of George Square in Glasgow for the final week of the campaign for example) we see elite led constitutional change - where both the Scottish and Westminster Parliaments seek to regain control of a process which was or briefly appeared to be in danger of changing hands. In the run up to the referendum there was a sense of inertia in terms of legal transactions and decisions in Scotland and the Scottish property market was bereft of life. The referendum result meant that there was no shift for Scotland from the current MIB agreements, currency with which we pay legal staff, there was further- no need to alter current road traffic legislation or set up Scotland s own OFT and CMA. The previous minister for justice, Kenny MacAskill, was involved in a significant restructuring of the civil justice system in Scotland. A new Justice Minister has been appointed and there is little doubt that the Scottish legal fraternity continues to have an appetite for change in civil justice. We have recently witnessed the Court Reform (Scotland) Act receive Royal Assent and the Scottish legal system will continue with its separate identity. How will the Scottish legal The Scottish legal fraternity continues to have an appetite for change in civil justice establishment react to the significant changes currently being agreed? What if any difference will the employment of what we can term Super Devo Max make to law firms and justice in Scotland? These questions deserve greater attention and these debates are bound to continue. 20 Tel