Insurance update. September New developments

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1 1 New developments 1.1 Guideline hourly rates The Master of the Rolls has accepted several recommendations of the CJC Costs Committee report in relation to guideline hourly rates which will take effect as of 1 October Grade A fee earners will now incorporate Fellows of CILEX with 8 years post qualification experience. Costs lawyers who are suitably qualified and subject to regulation can be eligible for a grade C or B rate, depending on the complexity of the work undertaken. However, the Master of the Rolls has rejected the proposal to introduce a Grade E for paralegals since there was no firm data available which would allow an hourly rate to be agreed which would reflect the market. 1.2 Grayling announces new court rules on medical evidence for whiplash claims In a bid to deter pre medical offers, Chris Grayling has promised new court rules which would come into force in October Mr Grayling announced on 3 August 2014 that claims for GP whiplash reports would be capped at 180, which is less than the current amount permitted under the Association of Medical Reporting Organisations Agreement. The change in legislation is aimed at discouraging the settlement of claims prior to the commission/report of medical evidence. Furthermore, the rules for requesting further more specialist reports will be more stringent, with each request needing to be backed by a clear and compelling reason. Mr Grayling claims the benefits will be two fold:- 1. Genuine claims can be settled quickly, whilst fraudulent claims will be driven out and; 2. Medical experts will be prevented from recommending further unnecessary treatment to their patients in the hope of extra revenue. 1.3 First council ABS approved by SRA Buckinghamshire Law Plus, a collaboration between Buckinghamshire County Council and the Buckinghamshire and Milton Keynes Fire Authority, will be licensed to undertake a range of services including litigation and probate services. The organisation will be comprised of around 45 lawyers and will be up and running within six months.

2 1.4 Insurance Bill introduced to UK Parliament The English and Scottish Law Commissions introduced the Insurance Bill to the UK Parliament. The Law Commissions also published their second report on insurance contract law which recommends the reform of disclosure in business insurance, insurance warranties, insurers' remedies for fraudulent claims and damages for late payment of claims. The majority of the recommendations have been accepted and are contained in the Insurance Bill. The Commissions' recommendations relating to late payment and the provision concerning warranties and other terms relevant to particular descriptions of loss (and which were subject to public consultation in June 2014) were not included in the draft Bill. The Commissions will work with industry participants to redraft the excluded clauses, with the aim that they can be enacted when a legislative opportunity arises. 1.5 APIL anger over discount rate delay APIL has reacted angrily to confirmation from the MoJ of a further delay to the review of the discount rate for personal injury cases as a panel of experts is recruited to assist. John Spencer, president of APIL, commented...injured people continue to have their damages unfairly docked by a discount rate which was set 13 years ago when the financial markets were very different. 1.6 Rule committee backs Part 36 reforms The Civil Procedure Rule Committee is to consider how Part 36 can be reformed, including simplifying them, allowing offers by counterclaiming defendants and discouraging cynical claimant offers. 1.7 Clause allowing strike out for fundamental dishonesty clears Lords Committee Stage Clause 45 of the Criminal Justice and Courts Bill (now Clause 49) has emerged from the Committee Stage in the Lords on 23 July without amendment. Clause 49 will require the courts to dismiss in its entirety a claim which is fundamentally dishonest, unless this would cause substantial injustice. 1.8 Impact assessment on the new fundamental dishonesty rule In a recently published impact assessment on the proposed new rule, the MoJ have commented that the change would send a strong message to claimants that if they act in a fundamentally dishonest way there is a greater probability that they will lose all compensation. The government are of the view that the new rule could lead to the number of personal injury claims being reduced and may have some form of deterrent effect against exaggeration. 2 Emerging behaviours 2.1 The extent of the Qualified One Way Cost Shifting regime Wagenaar v Weekend Travel Ltd & Serradj [2014] EWCA Civ 1105 The decision in Wagenaar is the first consideration by the Court of Appeal of the QOCS provisions. The issues included whether the QOCS regime was a valid regime and whether QOCS applies to Part 20 proceedings between a defendant and a third party. The claimant was injured in a skiing accident whilst on a package holiday and brought a claim against the defendant, the tour operator. After the commencement of litigation, the defendant joined the claimant s ski instructor as a third party to the claimant s claim, alleging if the accident was caused by negligence (which was denied) then the third party s negligence had been the more proximate cause of the claimant s accident. Following a trial, the claimant s claim against the defendant, and the defendant s claim against the third party were both dismissed. By a reserved judgment on costs given, without an oral hearing, it was ordered that:- 2

3 The claimant pay the defendant s costs, but that order was not to be enforced by reason of CPR and The defendant pay the third party s costs, but that order was not to be enforced by reason of CPR and CPR Both the defendant and the third party appealed. The defendant appealed on the grounds that QOCS should not apply at all. The third party appealed on the grounds that QOCS does not apply to Part 20 claims and that the order for costs in her favour should not have been stayed. The defendant s appeal was dismissed and the third party s appeal was allowed. In relation to the third party s arguments, the Court of Appeal considered CPR 44.13, which states QOCS applies to proceedings which include a claim for damages for personal injuries. The QOCS regime is intended to catch claims for damages for personal injury where other claims are made in addition by the same claimant. The QOCS regime did not apply to the proceedings between the defendant and the third party; the defendant chose to join the third party and failed in its third party claim against her. The defendant should pay the third party s costs. 2.2 Government seeking to discourage pre-medical offers Pre-medical offers have been increasingly used in casualty claims or employer/public liability and product liability. However, the government has indicated there may be some procedural changes on the horizon. Some benefits of pre-medical offers are centred around costs and the lifecycle of a case. Avoiding medical examinations can:- Save both on solicitor costs but also on disbursements Special damages may not escalate Prevent CRU benefits accruing Help decrease the chances of the development of complex causation arguments. However, pre medical offers can have negative effects on claims and could lead to perception changes within a workplace, which may result in increased claims due to likelihood of a quick payout or even an increase in fraudulent claims. At the end of 2013 the MoJ confirmed consideration was being undertaken to prevent pre-medical offers, particularly in relation to RTA claims. Since then the MoJ has published the Civil Procedure (Amendment No.6) Rules 2014, which restricts the costs consequences of any offer made which is made absent of any medical evidence. Currently this only covers soft tissue injuries but may be extended in the future. 2.3 Latest claims portal p figures The latest portal figures have not yet been published. 2.4 Amending a claim to introduce a new cause of action that would otherwise be time barred Mercer Ltd v Ballinger [2014] EWCA Civ 996 Under CPR 17.4 (giving effect to Section 35 of the Limitation Act 1980), the courts may grant permission for a statement of case to be amended to introduce a new cause of action which would otherwise be barred by time limitation. In Mercer Ltd the Court of Appeal gave a useful reminder of test to determine whether a new claim is to succeed:- 1. Is it reasonably arguable that the opposed amendments are outside the applicable limitation period? 2. If so, do they seek to add or substitute a new cause of action? 3. If so, does the new cause of action arise out of the same or substantially the same facts as are already in issue in the existing claim? 3

4 With regards to the first limb, the Court of Appeal held that the burden was on the applicant to show that the defence was not reasonably arguable, provided that the defendant could show a prima facie defence of limitation. 3 Motor claims 3.1 RTA & ex turpi causa Beaumont and O Neill v Ferrer [2014] EWHC 2398 (QB) A taxi driver was not liable in negligence to two youths who had sustained serious injuries after jumping out of his taxi as it was moving, even though he had chosen to drive on from a stationary position after realising that the youths did not intend to pay. Their claim for damages failed under the doctrine of ex turpi causa; their injuries were caused by their own criminal conduct in the course of attempting to evade payment. In any event, the claimant has made a foolish decision to jump from a moving taxi and the doctrine of volenti non fit injuria applied. 3.2 Driverless cars from 2015? At the end of July it was announced that the UK government is to outline the measures permitting the trial of driverless cars on public roads by next year. The legal and insurance implications will be wide spanning but it is generally still accepted that it shall be many more years before the use of driverless cars on public roads is the norm. However, this advancement in emerging technology signals the need to accelerate consideration into risks associated both at a policy and insurer level. Who would be to blame in the event of an RTA with a driverless car; would the car manufacturer be at fault, or possibly the on-board computer system manufacturer? How would current law relating to S143 of the Road Traffic Act 1988 (which requires any person using a car on a road to insure against third party risks) be applied to driverless cars? The current authorities on the subject state that use in this context implies an element of controlling, managing or operating the vehicle. This would now fall to a computer system not an individual. 3.3 Personal injury and interim payments Smith v Bailey [2014] EWHC 2569 (QB) The claimant had been involved in an RTA which resulted in him being wheelchair bound for life. He moved from a home that he owned into a rented property, which was suitable for his mobility needs. He then brought proceedings against the defendant, who denied liability and pleaded contributory negligence. The master awarded the claimant an interim payment to cover accommodation costs and valued the figure at conservative 500,000 after applying the first test in Eeles v Cobham Hire services Ltd [2009] EWCA Civ 204, [2010] 1 W.L.R 409. Furthermore, the master stated that the burden of proof for contributory negligence fell to the defendant to prove and there had been no evidence to support this finding. The claimant used the interim payment to purchase a new and suitable property. The defendant s appeal against the interim payment was dismissed. 4 Disease 4.1 John Patrick Dowdall v (1) William Kenyon and Sons LTD (2) BECA (Engineers) LTD (3) Greenfield and Payne LTD [2014] EWHC 2822 (QB) The claimant had been exposed to asbestos by at least 10 employers and was subsequently diagnosed with asbestosis and pleural plaques in In 2003, he settled a claim for 26,000 against 7 of his former employers. A claim for provisional damages, relating to the risk that the claimant would later develop a serious disease or condition, was made but not pursued. The claimant recently developed mesothelioma and sought to sue the remaining 3 employers, with his solicitors explaining in the first claim they did not have access to tracing methods to locate the insurers and pursue the 4

5 claim. At issue was:- 1. Whether the instant action was an abuse of process 2. Whether the claimant was precluded from bringing the claim by the 2003 settlement 3. Whether the action was barred by the Limitation Act It was held that the action was not an abuse of process as the 3 remaining employers were not parties to the original action and the decision in the first action was honestly made. With reference to the sums already awarded to the claimant, it was to be determined whether he had accepted the 26,000 with the view that this was to represent the full measure of his loss. It was held that he did not and the sum accepted was for the risk of mesothelioma and in return he decided not to seek an order permitting him to return to court in the event that mesothelioma actually developed. The claimant had suffered a condition which developed after the first action settled and for which he had not been compensated. The court held it was appropriate to disapply the Limitation Act period under S33; the claimant had a substantial claim for very serious harm, with good prospects of success in relation to establishing the additional 3 defendants had contributed to the causation of the risk of contracting mesothelioma and were liable for it. 5 EL/PL 5.1 Occupational stress and psychiatric injury Patricia Daniel v Secretary of State for the Department of Health [2014] EWHC 2578 (QB) The claimant claimed damages from her employer, the defendant secretary of state for damages for psychiatric injury arising out of occupational stress. The claimant had a history of bipolar disorder which carried a very high rate of recurrence; that pre-existing condition was unknown to her line manager or the defendant. The claimant contended that her stress and subsequent mental illness were brought about by the negligence of the defendant in permitting her to be bullied by a professor of medical oncology, and that the bullying and victimisation was not properly dealt with. At issue was whether there was a foreseeable risk that the claimant would suffer injury to her mental health arising out of stress at work and whether impending harm to her health arising from that stress was plain enough for any reasonable employer to realise that he must do something about it. The court held it was important to note that at no time did the claimant tell the defendant that she had a preexisting psychiatric condition and on the evidence there was no sign or indication available to the defendant of impending mental injury to the claimant. Consequently, there were neither indications nor complaints of impending harm to the claimant s health arising from stress at work. There were none at all that were plain enough for any employer to realise that he must do something about it. The psychiatric breakdown came as a surprise to the claimant s line manager. The psychiatric injury was not foreseeable and no duty of care arose. The claim was therefore dismissed. 6 Fraud 6.1 Number of rogue claim firms has reduced MoJ figures show that the number of rogue claims management companies that pursue accident claims has fallen from a peak of more than 3,300 in England and Wales in 2011 to 2,000. The MoJ has set up an enforcement unit to regulate the industry which may account for the reduction. 5

6 6.2 Norfolk businessman found guilty of intent to defraud Allianz of 2m A business owner has been found guilty of insurance fraud and arson arising from the burning down of his Norfolk bathroom and kitchen showroom two years ago in an attempt to claim more than 2m from Allianz. He has been remanded in custody and will be sentenced in September. 7 Market 7.1 Irwin Mitchell launches IMe with Esure Irwin Mitchell has collaborated with Esure in the launch of a new ABS to produce IMe. IMe, based in Sheffield, will provide legal services for customers of Esure injured in motoring accidents and are just the latest companies to participate in a deal between insurance and solicitors firms. IMe opened for business from mid August 2014, and it is envisaged that Esure customers can seek legal advice from early September onwards. 7.2 FCA has fined an insurance firm 8.4m The Financial Conduct Authority has fined an insurance firm 8.4m due to its failure to fairly treat all customers in relation to sales by outsourced companies of accident insurance. Stonebridge International Insurance had failed to provide fair and impartial advice and had been obstructive and evasive to customers trying to cancel a policy. The FCA concluded that Stonebridge s failings were due to poor systems in place and inadequate oversight of the outsourcing companies. More specifically Stonebridge were in breach of Principle 3 (Management and Control) and Principle 6 (Customers interests) of the FCA s Principles for Business. Sales were carried out over the phone, using outsourced companies, who targeted individuals from middle to low income brackets without professional qualifications. The telesales scripts used did not provide clarity and emphasised the apparent ability to cancel policies in order to boost sales. In total almost half a million people were affected who are now being contacted for the purposes of compensation. The fine is a reminder to companies who outsource functions that their duty is to oversee these companies and ensure they comply with all relevant regulatory requirements. 7.3 Gordons has a decrease in turnover Yorkshire firm Gordons has announced that its turnover fell by 11% in 2013/2014, from 25.8 million to 22.9 million. In part this has been put down to a withdrawal from claimant personal injury work following the implementation of the Jackson reforms. The firm's profitability is also thought to have decreased, although profit figures have not yet been disclosed. 7.4 New Australian entrants to the market? Australian PI firm, Shine Lawyers, has announced that it considers itself to be "well placed" to take advantage of the changing UK legal market after reporting a 10% increase in turnover and a 27% increase in net profit. 7.5 Quindell - taking over the world? The chairman of legal services provider Quindell, Rob Terry, has recently commented that his company is now the largest personal injury business in the UK. The AIM listed company posted million in pre-tax profit for the first half of this year; this is up 193% from the 52.5 million recorded for the same period last year. Quindell employs almost 3,000 staff in the UK and a further 1,000 across the world. Quindell currently owns five legal services providers: Silverbeck Rymer, Pinto Potts, The Compensation Lawyers, Accident Advice Helpline and Compass Law. 8 In Europe 8.1 Insurance market in Europe has maintained long term stability Figures recently released show that between the years of 2003 to 2012, the European insurance industry has remained largely stable and has shown a steady period of growth according to 32 national insurance associations. 6

7 European insurance premiums increased in nominal terms by a quarter during that period, with non-life premiums growing at a faster rate than life premiums, with cumulative increases of 30% and 22% respectively. The level of insurance penetration in Europe fluctuated between 7.4% and 8.7%. The average amount of insurance premium per person shows a steady upward trend throughout the decade with a cumulative increase of 21%. This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only and is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss that may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans LLP. Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to receive a variety of marketing materials including our legal update service, newsletters and invites to seminars and events. It details your name, address, telephone, fax, , website, mailing requirements and other comments if any. Please ensure you update our marketing team with any changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at 100 Old Hall Street Liverpool L3 9QJ. 7

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