The Motor Insurance Regulation Bill. A Briefing Paper from NewLaw Solicitors

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1 The Motor Insurance Regulation Bill A Briefing Paper from NewLaw Solicitors Produced by: Philip Dicken Strategic Partnerships Director NewLaw Solicitors Directline: Mobile:

2 Introduction The Rt Hon Jack Straw has been granted leave to introduce a Bill to Parliament for its second reading on the 20 th January 2012 to be referred to as the Motor Insurance Regulation Bill. It remains to be seen how much of the Bill will actually be enacted and whether the Government prefers to implement the core proposition through amendments to existing Bills before Parliament. Whatever the mechanism for implementation, the current practice of the payment of referral fees for personal injury claims, seems likely to be brought to an end. It appears that a ban has cross party support following comments made by the Justice Minister and the announcement by the government that it intends to ban referral fees. It is possible that a ban could happen as soon as the second or third quarter of Summary of Proposals The Bill contains 4 proposals: - 1. It shall be unlawful for any person to solicit, offer or pay any referral fee relating to a personal injury road traffic claim, and no such fee shall be recoverable as costs of any legal advice, assistance or actions. 2. Whiplash Claims a. In any claim for whiplash the onus shall be upon the Claimant to satisfy the Court that there is independent objective evidence that the Claimant has suffered harm. b. There shall be a rebuttable presumption that no injury has been suffered if either: - i. The collision giving rise to the accident occurred at 15mph or less; or ii. There are no musculoskeletal signs of injury. 3. Fixed legal costs for pursuing a claim through the road traffic portal should be: Stage Stage Stage In setting motor insurance premiums it shall be unlawful for any insurer to seek to isolate the level of risk arising from the incidence of personal injury road traffic claims in an area smaller than the standard England or Wales region in which the applicant for insurance resides. 2

3 Potential Consequences of the Bill It is worth bearing in mind that the claimed purpose of the Bill is to facilitate a reduction in motor insurance premiums. It is almost impossible to understand how this will be achieved by the four proposals. 1. Referral Fee Ban The payment or receipt of referral fees for road traffic personal injury claims shall become a criminal offence punishable by fine or imprisonment. As a result, direct income derived from the referral of personal injury claims shall cease, whether this is upfront income received by way of a fee at the outset of the claim or profit sharing income received upon settlement. It is likely that this would also encompass any commissions paid in respect of expert medical reports. The definition of referral fee is exceptionally wide and as drafted arguably encompasses any mechanism designed to derive revenue for the referring party. The definition shall require further clarification and ought to be narrowed. It is important that effective lobbying takes place to ensure that this Bill does not threaten what we consider to be the entirely legitimate and welcome development of joint venture alternative business structures for the purpose of delivering legal services. Such commercial models would introduce absolute transparency as to who is providing the legal service at the point of sale of the policy. They would not cause increased legal costs, create a compensation culture or encourage fraudulent claims. Lawyers, insurers, brokers and other claims management organisations share a common interest in striving to narrow this definition. Given that the Bill either does nothing or can do nothing to address the issues of fraudulent claims, uninsured driving or lack of investment income, the lack of referral fee revenue is unlikely to be balanced out by an equivalent drop in insurance premiums. 3

4 2. Whiplash Claims The first subtle point of interest is that the definition of whiplash is restricted to neck injury. The Bill as drafted does not therefore contemplate acceleration/deceleration injuries to the spine. Many hyper extension injuries to the neck are accompanied by similar soft tissue injuries to some part of the thoracic, dorsal or lumbar spine and to that extent the Bill would not apply. In any event the provisions relating to the requirement for objective evidence for whiplash claims are largely redundant. This is already provided for by the existing legal system. The burden of proof already rests with the Claimant and the Civil Procedure Rules require independent medical evidence to be provided, supported by a declaration and Statement of Truth from a suitably qualified expert. It is the second part of the whiplash clause that is likely to see the greatest and least welcome consequence. The presumption of no injury should either one of the two stipulated circumstances exist is a rebuttable presumption. This provision simply introduces two further issues with the potential for dispute between the parties. Rather than claims proceeding expeditiously through the existing fixed fee regime, thousands will now drop out in respect of arguments over speed. Those claims will proceed to trial where costs are not capped and are recovered at hourly rates. Witnesses and other corroborative evidence shall be called to establish that the collision actually occurred at a speed of 16mph or higher. Other claims involving genuine soft tissue injuries to the neck but only soft tissue injuries to the neck shall also proceed to a final hearing so that the Judge may assess the objective evidence and the credibility of the Claimant. The claims that we pursue are genuine, as are our clients. It is not in the interests of our strategic partners to refer non genuine claims. It is therefore a ludicrous waste of costs to insist on bringing the Claimant (and presumably the medical expert) to trial, simply for the Judge to conclude that he or she is entirely honest and therefore there is no reason not to believe their evidence in respect of the pain and suffering sustained. In such circumstances insurers will face a bill for costs far higher than they would otherwise have done had the claim simply been allowed to proceed through the existing process. Once again, this would not appear to be in anybody s best interests. The potential consequence is higher cost and so higher rather lower insurance premiums. 4

5 3. Reduction in Fixed Costs There is a concerning potential for a further reduction in fixed legal costs to lead to an increase in fraudulent and spurious claims. Mr Straw advised Parliament that it costs a lawyer 100 to pursue a claim through the road traffic portal, making no attempt to justify this figure. In reality this is because it cannot be justified. The true cost is far higher than the figure suggested. A good deal of the work performed by lawyers in this process is front loaded, evidence is sought to corroborate the claim and to ensure that fraudulent and spurious claims are weeded out at the outset. A lot of work and therefore cost is incurred on claims which don t even proceed. If Mr Straw wishes to restrict the fees that lawyers are able to charge for this process then he can expect the number of fraudulent claims to increase as they shall simply be unable to afford to take the steps required to eradicate fraudulent claims. The consequence of this would be greater claims cost and so higher premiums. Mr Straw s proposal also ignores the fact that the referral fees are only the equivalent of the law firm s acquisition costs the usual marketing expenses of any business. Any argument that lawyer s fees should be reduced to a level at which they would be unable to afford to market their services would be anti competitive and open to challenge on those grounds. 4. Relevance of Postcode to Pricing The United Kingdom has hot spots of fraudulent activity. People living in those hot spots can expect to pay more for their motor insurance premiums as this is a factor that is taken into account as part of the underwriting considerations. The likely consequence of the fourth proposal is that those people living in areas that are less inclined to commit fraud shall now pay more for their motor insurance, residents of fraud hot spots shall pay less. The average premium shall be unaffected. Whilst this proposal may remove geography as a relevant underwriting consideration, it shall do nothing to reduce the average price paid by the UK consumer. 5

6 Observations The most glaring omission from the bill is the exclusion of referral fees paid in relation to public and employer s liability claims. The beneficiaries of such referral fees are never insurers. The recipients of such fees are most frequently Trade Unions. To include these classes of liability within the bill would have fatally undermined Trade Union funding, adding fuel to the suspicion that this bill is motivated almost exclusively by political interest. If the payment of money for the referral of motor personal injury claims is as grubby as Mr Straw claimed and should therefore be a criminal offence, surely it is just as grubby for the Unions to sell their members claims. It seems that the Unions have lobbied hard to ensure that employer s liability claims were taken out of the referral fee ban. However, in what might transpire to be a spectacular own goal, Mr Straw has let the genie out of the bottle and it is almost inconceivable that the government will not extend the referral fee ban to all personal injury claims, to include employers and public liability. It would be prudent to assume that this shall be the case. The postcode provisions might also appear to be self-serving Mr Straw s own constituency of Blackburn is one of the worst areas of fraudulent activity in the whole of the UK. If this Bill becomes law then Mr Straw s voters are likely to pay less for their motor insurance whilst others outside it shall pay more. The proposals are disappointing. They are unlikely to bring an end to the practice of insurance related fraud that is costing the British public hundreds of millions of pounds each year. They do nothing to tackle the rising problem of uninsured driving that costs policyholders 500m each year. They are most unlikely to result in any reduction in insurance premiums. Notwithstanding the disappointing nature of the Bill, it will send shockwaves across the industry. However, there is now a real opportunity for everybody working within the industry to embrace commercial change and move the personal injury model to a sustainable, ethical platform, which delivers access to justice in a commercially viable model. NewLaw has for some time been developing alternative structures and commercial strategies with our business partners to ensure that these long anticipated proposals do not undermine access to justice. We have built complex and robust financial models to demonstrate how such arrangements might work in the post referral fee world. We are able to build bespoke models upon request. There will be life after referral fees, but only for those organisations that are prepared to adapt their business models accordingly. 6

7 NewLaw Solicitors NewLaw Solicitors is a fresh thinking legal practice. It is the trading style of NewLaw Legal Limited. The company trades within a corporate structure that delivers a modern, nimble approach to legal services that cannot always be achieved via more traditional Partnership models. Founded in 2004, the firm has its roots firmly within the insurance industry. Chief Executive Helen Molyneux was Head of Insurance at Eversheds. Other senior managers including the Strategic Partnerships Director Philip Dicken are also insurance lawyers of many years experience. NewLaw now employs over 270 people from its Head Office in Cardiff and is the 7 th fastest growing company in Wales. With an almost infinitely scaleable infrastructure, NewLaw currently processes in excess of 20,000 personal injury claims each year. The firm has a growing reputation for providing claimant personal injury legal services of the very highest quality on a business to business basis on behalf of its strategic partners. We pride ourselves on our integrity, service delivery and innovative commercial proposals. We shall not compromise on any of these. We understand that everything that we do reflects upon the brand of our business partners, hence our unwavering dedication to delivering legal services of the highest quality. For further information please contact: Philip Dicken Strategic Partnerships Director NewLaw Solicitors Directline: Mobile:

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