LASPO. Why has. come about brief history of reforms

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2 Contents Foreword 2 3 Foreword: Why has LASPO come about 4 Changes to funding and implications 6 Changes in practice 7 Track limits 8 The RTA and EL/PL Protocols 11 Referral fees 12 Contact information TIME FOR CHANGE Why has LASPO come about brief history of reforms There has been no shortage of discussion over the last decade regarding the UK s Compensation Culture and the rising cost of insurance claims and premiums. The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act was passed in May 2012 and took effect from 1 April For some, Part 2 of the Act - which deals with civil litigation and funding has taken on a Messianic significance in a journey towards a fairer system that has taken over ten years to complete. Interestingly, LASPO itself is still only part of the story which this update endeavours to shine light on. Undeniably, one of the key drivers for the increasing cost of claims was the transition to the contingent fee ( no win, no fee ) civil compensation model which was made possible by the Access to Justice Act The changes allowed for recovery of success fees from the losing party in civil cases. Whilst this was important in terms of accident victims being given access to justice and the ability to pursue compensation, it also allowed them to do so at no personal risk to themselves whatsoever. The net effect was a proliferation in the number of claims management companies and advertisements and a huge rise in litigation costs which led to higher insurance premiums, particularly in motor insurance. As these costs started to become unsustainable for household budgets and businesses, the Government commissioned Lord Justice Jackson to conduct a review. In 2010, the Jackson report - which ran to over 600 pages - made some key recommendations aimed at reforming the UK civil costs model. Significantly, Jackson proposed abolishing no win no fee success fees and After the Event (ATE) insurance premium recovery from losing parties. The LASPO Bill (now Act) took these forward and added another: a ban on referral fees in personal injury cases, another huge factor pushing up costs. Recognising the need to continue to provide access to justice and ensure claimants were not disadvantaged financially, the trade-off, designed by Jackson and implemented by the Coalition, was to raise the level of general damages by 10% and to introduce qualified one-way costs shifting. Outside the Sophie Spink LASPO Act, the Head of Government and Industry Affairs (GI UK) and other part of the UK Corporate Responsibility reform package Zurich Insurance Plc which is critical to the long-term cost savings agenda is the extension of the fast-track claims portal up to in motor, employers liability and public liability and the reduction in fixed fees for lawyers. The journey has not been an easy one and has been beset by attempts to disrupt progress, for example the launch of a judicial review by lawyers on fixed fees recently. We also know that the devil is always in the detail or, in this case, how the implementation plays out. But, just as the Access to Justice Act proved to be a watershed moment in the history of civil litigation, let us hope that 2013 is the watershed year when access to justice was renamed access to fairness. 3

3 Changes to funding and implications The Legal Aid, Sentencing and Punishment of Offenders Act 2012 Changes to funding and implications Information so that advice can be provided to clients Andrew Parker Head of Strategic Litigation at international law firm DAC Beachcroft 4 The need for BTE cover: When clients are looking to renew their policies, brokers must take account of the changes to the rules on the funding of litigation and the impact that this may have on the client s requirements for cover. These changes will put a different focus on the requirement for before the event (BTE) legal expenses cover which may become more popular as a result of these changes. The changes to the range of funding arrangements previously available under no win no fee type arrangements should be explained to the client. This is so that they can make an informed choice as to whether to buy BTE cover. In the light of these changes, the BTE market is likely to evolve to offer cover for potential claimants who no longer have access to risk-free ATE cover. Brokers should, therefore, keep a close eye on product developments in this part of the market. The new methods of funding claims: Changes to After The Event (ATE) policies and Conditional Fee Agreement (CFA) arrangements Claimants will still be able to fund their claim with a Conditional Fee Agreement (CFA), but those who sign a CFA on or after 1 April 2013 will be liable to pay any success fee uplift out of their damages, as the uplift will no longer be recoverable from the losing defendant. The success fee payable by the claimant will be capped at 25% of the damages that they recover. Some damages that the claimant will recover, such as future loss of earnings, will be ring-fenced so that they do not form part of the 25% cap. In addition, ATE premiums are no longer recoverable from the losing defendant if the ATE cover is taken out on or after 1 April ATE cover for certain litigation risks, however, is likely to remain available. Damages Based Agreements Damages Based Agreements (DBAs) are now allowed in all claims. These are contingency fee agreements and allow the lawyer to charge the claimant a fee based on the level of damages recovered. These contingency fees are capped at 25% of damages in personal injury claims (excluding future losses) and capped at 50% in other claims. The DBA fee is reduced to take into account any costs recovered from the defendant, reducing the proportion of damages retained as costs where the claimant recovers a contribution towards costs from the paying party. Uplift on General Damages To assist claimants who will now need to pay their own uplift out of damages, general damages will increase by 10% from 1 April 2013 for all cases, unless the claimant entered into a CFA before 1 April Damages for the asbestos cancer mesothelioma will increase by 10% even if a CFA was in place before 1 April Qualified one-way costs shifting In personal injury claims only, qualified one-way costs shifting (QOCS) has been introduced. This means that a claimant who loses their claim will not have to pay the defendant s costs. A claimant who wins their claim, but has a costs order made against them for any reason during the course of the litigation, will never have to pay more by way of costs than the damages that they recover, unless the claim was dishonest or found to have been an abuse of process. This will not apply if the claimant entered into a CFA or ATE policy before 1 April Joanna Folan Senior Solicitor at international law firm DAC Beachcroft 5

4 Changes in practice Track limits What do these changes mean in practice? Brokers should be able to advise their clients about the various funding options available to them. Clients should be advised that CFAs and ATE remain available, but that the success fee uplift and ATE premium can no longer be recovered from the paying party. Instead, the claimant, if they win their claim, will be liable to their own solicitor for those costs, which will be deducted from their damages. It should also be noted that, while ATE is still available, the market will change. Brokers will need to understand the new market; what type of cover can be arranged and at what cost. Brokers should also be able to advise their clients about the availability of Damages Based Agreements and the fact that these are calculated as against the damages recovered, rather than the costs charged as with the success fee uplift in CFAs. The broker may, therefore, need to consider with a client whether it is better to instruct a solicitor under a DBA or a CFA for their particular claim. It should be noted that the 25% cap for DBAs includes any VAT and counsel s fees, a deal which may be attractive to the client but less so for the solicitor. Brokers should also be able to explain qualified one-way costs shifting (QOCS) in personal injury cases; the effect on winning claimants (that any costs order would only be deducted from damages) as well as the protection for losing ones (the fact that a successful defendant will not recover their costs from a losing claimant, except in cases of dishonesty). They should be able to discuss whether ATE funding is appropriate at all in personal injury cases, where this QOCS protection is available for the claimants who do not already have a CFA or ATE in place. Increased small claims track limits what this means in terms of bringing claims The small claims track limit, previously 5,000, was increased to 10,000 for all claims issued at court after 1 April This means that all claims valued at up to 10,000, except personal injury or housing disrepair, will now proceed through the small claims track. Many claims which would have previously been caught by the fast track, will now proceed through the small claims track, and many claimants who would have previously been able to instruct solicitors to deal with their claim will now have to bring the claim in person. Brokers should be aware of procedures in the small claims track in order to be able to advise their clients on the process and on the small claims track mediation service which is now available. In terms of injury claims, the Government is currently consulting on whether the 1,000 limit should be increased to 5,000 for either all road traffic accident or whiplash claims. The consultation is closed and awaiting a response. However, if these changes are imposed, brokers will need to be able to advise their clients as to any new procedures or processes for bringing a personal injury claim in an RTA matter valued at up to 5,000, as many may choose to bring these claims in person without the assistance of a solicitor. 6 7

5 The RTA and EL/PL Protocols Timeframes for responses from clients The RTA and EL/PL Protocols How will claims be dealt with under the simplified procedure? RTA personal injury claims with a value of up to 10,000 have been dealt with via the RTA low value personal injury protocol since That RTA protocol is being extended horizontally such that it will now also apply to EL/PL claims and vertically so that it will apply to all such claims, RTA, EL and PL, with a value up to 25,000. The Government has advised that these changes will apply to accidents on or after 31 July 2013.The new protocols are yet to be formally signed off by the Civil Procedure Rule Committee, but draft protocols have already been circulated in largely final form and are not expected to change much at this stage. The process for RTA, EL/PL claims is that they are run using a streamlined process via an IT portal. Stage one of the process requires the claimant to provide full details of the claim by completing a claim notification form (CNF). The defendant then has a specified period of time to respond on liability. At stage 2 of the claim, the claimant must provide a settlement pack which sets out full details of the claim and the defendant has a specified time within which to make an offer. If agreement cannot be reached within the negotiation period then the claim moves on to stage 3. Stage 3 is a simplified procedure in which the court will assess the appropriate level of damages. In an RTA claim, a CNF is sent to the defendant or their insurer and must be acknowledged the next day. A full response must be provided to the claimant within 15 working days admitting and/or denying liability. If liability is denied, then the claim will exit the protocol at that stage. If it is admitted, the claim will move into stage 2. At that stage the claimant will prepare a settlement pack which is sent through to the defendant. The defendant then has an initial consideration period of 15 days within which to make an offer. The negotiation period then continues for 20 days from the end of the initial consideration period. If settlement cannot be agreed then the claim moves to stage 3 for assessment of damages by the court. 8 9

6 The RTA and EL/PL Protocols Referral fees In an EL/PL claim where the accident occurs on or after 31 July 2013, when the claimant sends the CNF through to the defendant s insurer, the insurer must acknowledge receipt on the next working day and must then respond within 30 days (for EL claims) and 40 days (for PL claims) admitting or denying liability. Again, if liability is denied then the claim falls out of the protocol. Where the claimant sends the CNF to the defendant direct rather than their insurer, then the defendant must acknowledge receipt within one working day and at the same time forward the CNF to the insurer and advise the claimant that they have done so. In an EL claim, details of the claimant s loss of earnings must be provided to the claimant within 20 days of an admission of liability. Once a claim moves into stage 2 and the settlement pack has been provided then the defendant has an initial consideration period of 15 days to make an offer and there is then a negotiation period which continues for 20 days from the end of the initial consideration period. Again, if settlement has not been achieved then the claim moves to stage 3, a simplified court assessment process. What does this mean in practice? Brokers may become aware of a claim before either the insured or the insurer and should therefore notify both immediately of the claim and of whether it seems likely to be proceeding under the RTA or EL/PL protocols. The broker may need to assist the insured with any claim and advise them on when various steps need to be taken, for example timeframes for admitting or denying liability, providing the employment documents and negotiating settlement. Clients will need to be made aware that this is a simplified procedure, that timeframes are limited and that they need to act quickly. In PL cases it is likely that claims will be notified direct to the insured rather than to the insurer and the insured will need to be advised of the steps they are required to take under the protocol and when they are required to take them. Ban on referral fees The ban on referral fees in personal injury cases was implemented on 1 April 2013 and applies to all FCAregulated firms, as well as solicitors and claims management companies. Many business arrangements will need to be restructured as a result of this ban and brokers will need to be aware of the changes that are being made by both insurers and solicitors, for example changes in the identity of the FNOL provider. What does this mean in practice? Brokers need to be aware of any changes to policy wording in terms of the structure of how claims are to be notified and to make sure that clients are aware of these changes

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