Insurance update. November New developments

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1 frie Insurance update 1 New developments 1.1 No further time for the claimant on varied Part 36 offers In what is understood to be the first ruling on the costs consequences of accepting a less advantageous part 36 offer, Portsmouth County Court have ruled that a claimant effectively had no chance to accept the defendant s varied offer. DJ Ackroyd in Burrett v Mencap [2014] WL said a reduced offer made by the defendant, varying their earlier offer (and which was accepted by the claimant 16 days after it was made) did not constitute a fresh part 36 offer. DJ Ackroyd said that he was constrained by the rules themselves and should not seek to wonder and deliberate with myself what Parliament or the draughtsman there had in mind when the rules were drawn CPR Part 36.7 is entirely silent as to any extension or renewal or replacement of the time for acceptance. The claimant thought she had 21 days to accept the reduced offer, but in fact she had no chance. There is no provision for a further period of acceptance in the rules where a part 36 offer is varied. 1.2 Fundamental dishonesty is set to defeat the whole claim The Criminal Justice and Courts Bill is before parliament and expected to be on the statute books by January Clauses 49 to 53 of the Bill focus on personal injury claims, with provision for the whole claim to be defeated if there are any finding of fundamental dishonesty. Clause 49(1) (b) requires a court to dismiss the whole of a personal injury claim if it is satisfied, on the balance of probabilities, that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim that is in relation to any part of the claim. These provisions will capture situations such as, where there is an exaggeration of symptoms, if that is held to be fundamental dishonest, which would result in a claimant losing the whole claim. Once the Bill receives royal assent, dismissal of the claim will be mandatory upon a finding of fundamental dishonesty unless the court is satisfied that the claimant would suffer substantial injustice if the claim were dismissed. The court will no longer have the option of reducing or eliminating damages, subject to the substantial injustice exception. Reasons for withdrawal of a Part 36 offers must be disclosed The High Court has ruled that any judge giving permission for the withdrawal of a Part 36 offer must release details of the arguments and evidence behind their decision. In Jayne Ellen Evans v Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185 (QB), the defendant made an ex parte application for permission to withdraw an offer prior to the expiry of the relevant period. The order was made and the defendant served notice of withdrawal of the offer upon the claimant.

2 The claimant attempted to accept the offer on the same day. The Court held that it was wrong in principle for the defendant to make its application for permission to withdraw the offer without notice to the claimant, and for the court to entertain that application. It was all the more wrong, after such permission had been given, to conceal from the claimant the grounds on which that order had been made. The claimant was entitled to have the ex parte order set aside. The court also said that the test to be applied when considering whether to grant a party permission to withdraw a part 36 offer was whether there had been a sufficient change of circumstances to make it just to do so. 1.3 Update on the Insurance Bill The Insurance Bill had its second reading before the House of Lords on 30 July It is on track to be passed by the end of March 2015 and to come into full force approximately 18 months thereafter. The Insurance Bill changes the current duty of disclosure by an insured to one of fair presentation. 1.4 The Medical Innovation Bill A parliamentary Bill who aims to permit doctors to use innovative medical treatments without fear of consequential litigation is to be debated in the House of Lords on Friday 31 October John Spencer, president of the Association of Personal Injury Lawyers ( APIL ) has expressed his concerns about the Bill, stating we are particularly worried about the notion that the Medical Innovation Bill would only apply to dying people who are willing to give anything a chance. APIL have produced a Myth v Reality report for presentation to the supporters of the Bill. John Spencer has further stated the Bill is both ill conceived and completely unnecessary. We hear wonderful stories of medical breakthroughs every day, and have heard no cases of a doctor being sued for using an innovative treatment. The current legal requirement of doctors has been helping to protect patients for nearly 60 years. If a lack of understanding is in fact stopping some doctors from taking what could be the best course of action for their patients, then there should be an effort to educate, not legislate 1.5 Setting aside default judgment and Denton The court have ruled in Sharon Hockley v North Lincolnshire & Goole NHS Foundation Trust [2014] HC (Judge Jeremy Richardson QC) 19/09/2014, that the relevant considerations in respect of an application under either CPR Part 13.3 to set aside a default judgment or CPR Part 3.9 seeking relief from sanctions were similar. Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795 and Denton v TH White Ltd [2014] EWCA Civ 906, [2014] C.P. Rep. 40, although covering relief from sanctions, had profound importance in applications to set aside default judgments. Further, telephone hearings ought not to be used where there was a demand for the exercise of judgment in a difficult factual matrix where the consequences were likely to be very significant. 1.7 Failure to file notice of funding breach held to be serious In Caliendo v Mishcon De Reya (A Firm) [2014] EWHC 3414, the claimants served their notice of conditional fee agreement and after the event policy several months late, and, in breach of CPR Part 44.15(2). The claimants made an application for relief from sanctions. The Court held that although the breach was serious, it had not prejudiced the defendants or other litigants. Relief from sanctions was granted to the claimants.

3 1.8 When is it reasonable to amend the pleadings? In LBI HF (formerly Landsbanki Islands HF) v Kevin Gerald Standford & Landsbanki Luxembourg SA (In Liquidation) [2014] EWHC 3273 (Comm) the court dismissed the applicant s application for permission to re-re-re-amend the defence and counterclaim two days into the trial. The court said that it was too late to amend as there was no reason why the issues in question could not have been dealt with at a much earlier stage. To allow the proposed amendments would prejudice the respondent to a much greater extent than the applicant. The lateness and the way the matter had been dealt with had to be weighed against the prejudice that would be suffered by the respondent. If the amendments had been allowed, the respondent would have had to deal with the matter at a time when its witnesses were about to be called to give evidence. 1.9 Success for the flight delay passengers In Jet2.com Limited v Huzar, [2014] EWCA Civ 791Mr. Huzar s flight from Malaga to Manchester was delayed due to an unexpected technical problem during its inbound flight to Malaga. The total delay to Mr. Huzar was 27 hours. Separately, in Thomson Airways Limited v Dawson [2014] EWCA Civ 845 Mr. Dawson s flight from Gatwick to the Dominican Republic was delayed by crew shortages caused by sickness. The flight eventually arrived at its destination over six hours late. Both Mr. Huzar and Mr. Dawson claimed compensation from the airlines arising out the delays. Both cases raised separate legal argument. In Jet2.com Limited v Huzar the Court of Appeal held that an unforeseeable technical problem did not amount to extraordinary circumstances for the purposes of Regulation (EC) No. 261/2004 and therefore compensation was payable by the airline. In Thomson Airways Limited v Dawson, the Court of Appeal s judgment held the applicable limitation period for bringing a claim for compensation under Regulation (EC) No. 261/2004 was 6 years and not 2. In both cases permission to Appeal was sought from the Supreme Court. A significant number of claims for compensation have been stayed pending the applications to appeal. The Supreme Court reviewed the written submissions in both cases and on 31 October 2014 refused the airlines permission to Appeal the decisions of the Court of the Appeal, which will now remain. The Supreme Court s grounds for the refusal to appeal are:- (Jet2.com Limited v Huzar) the airline s application for permission to appeal did not raise a point of law of general public importance; (Thomson Airways Limited v Dawson) the application did not raise an arguable point of law. As to the European law arguments, the Supreme Court said it is not necessary to request the Court of Justice to give any ruling, because the court s existing jurisprudence already provides sufficient answer.. 2 Emerging behaviours 2.1 Do Calderbank offers provide the same protection as Part 36? The Court of Appeal has ruled that the effect of a Calderbank offer is not the same as a part 36 offer. The court s discretion as to costs following a Calderbank offer arises under CPR Part 44. The court heard in Coward v Phaestos and others [2014] EWCA Civ 1256 arguments over copyright of software. Mr Justice David Richards ruled that the effect of a Calderbank offer was not to be assessed by analogy with the terms of CPR Part 36.14(1A), which defined a more advantageous judgment as one that was better in money terms by any amount than the relevant offer. The costs in this case were 19 million.

4 2.2 Victory for utmost good faith The Court of Appeal have dismissed the appeal of an insured whose claim was held to be forfeited after it was proved that a fraudulent statement had been made in a legitimate claim (Versloot Dredging v HDI Gerling [2014] EWCA Civ 1349). The case concerned the damage of a marine engine which resulted in a claim being presented to insurers for 3,241, euros. It was found that a statement made by the Master of the vessel was false. At first instance the court held that the whole claim was forfeit. The insured appealed on the basis that the fraud was unconnected to the level of losses which were legitimately claimed. The Court of Appeal followed the test laid down in Agapitos v Agnew [2003] QB 556 which says that in order for the claim to be forfeit, the fraudulent device must be directly related to the claim and must have been intended to enhance the prospects of the claim s success. The Court of Appeal held that the test had been met and the appeal was dismissed. The whole claim was forfeit. The Court of Appeal further held that deterrence of fraud is a legitimate aim and whilst forfeiture appears to be disproportionate in some circumstances, it is not disproportionate to the aim of discouraging and reducing insurance fraud. 2.3 Action on litigants in person Justice Minister, Simon Hughes, is due to make an announcement within the next few weeks regarding the issue of increased litigants in person. In a speech made at the Liberal Democrats party, Mr. Hughes spoke of how he had managed to persuade his colleagues at the Ministry of Justice to tackle the problem on the rising number of individuals unrepresented at court. Mr. Hughes suggested the announcement would come before Christmas 2014, along with relaxed ruling for exceptional funding available through the Ministry. In contrast however, all 3 political parties remain steadfast on their pledge to keep legal funding at the current reduced sum. The increased number of litigants in person is not confined to family cases and affects civil matters alike. Mr. Hughes spoke of Human Rights and the implications of the lack of funding for litigants. 2.4 Latest Claims Portal figures released RTA 75,011 new RTA claims entered the Portal in September 2014, being an increase of 9,206 claims from August which likely reflects the return from the summer holidays. Of the total number of RTA claims notification forms entering the Portal in September, 20,030 exited at stage one and 1,121 exited the portal at stage two during September. The average figure for general damages showed a decrease in September from 2, to 2, EL Accident only September saw an increase from 4,084 claims notification forms to 4,726. The number of claims notification forms dropping out at stage one was 2,145, and at stage two was 54 (both increased on the August statistics). The general damages paid increased in September to 3, from 3, reported in August EL Disease During September 2014, 1,658 claims notification forms were submitted (which is an increase on 1,317 in August 2014). 559 claims notification forms dropped out of the portal during stage one, and 34 during stage two (again, an increase on August statistics). The general damages paid decreased slightly in September to 4, (August was recorded at 4,740.00). Public liability September 2014 saw an increase in claims notification forms entering the portal to 7,472 (increasing from 6,256 in August 2014). The number of claims notification forms dropping out at stage one were 4,135 (increase upon August 2014 which was 3,643). The number of claims notification forms dropping out at stage two also increased during September to 62. General damages decreased in September to 3, (August records general damages at 3,309.00).

5 3 Motor claims 3.1 Keyless cars being targeted by criminal gangs The Society of Motor Manufacturers and Traders (SMMT) have reported that organised criminal gangs are targeting high-end cars with keyless security systems. Entry to the vehicles and operation of the ignition works by the driver using a fob which automatically opens the vehicle. Vehicles security is being avoided by the use of equipment intended only for use by mechanics. Criminal gangs have managed to obtain equipment on line which is able to completely re programme the fobs for vehicles. Some London based owners of Range Rovers have reported that insurance has been denied due to this issue. Earlier this year, the US National Insurance Crime Bureau (NICB) reported an increase in car thefts involving equipment to re programme keyless entry. Thatcham Research, during its collection of data on behalf of UK insurers, acknowledged the problem was widespread. However, the UK Office for National Statistics has reported that car theft has fallen from 318,000 in 2002 to 77,500 last year. 4 EL/PL 4.1 Rolls Royce fined 377,000 in radiation case Rolls Royce Marine Power Operations Ltd, a subsidiary of Derby based Rolls Royce Plc, has been fined 200,000 and ordered to pay costs, after it failed in its duty of care to prevent the spread of radioactive material. A capsule, the size of a small screw, was misplaced for around 5 hours on 3 March 2011, leading to the exposure of many employees to gamma radiation, in excess of the recommended dose. The company pleaded guilty to breaching sections 2(1) and 3(1) of the Health & Safety at Work Act 1974; Regulation 3(1) (a) of the Management of Health & Safety at Work regulations 1999; Regulation 11 of the Ionising Radiation regulations 1999, and, three counts of breaching Regulation 38(2) of the Environmental Regulations By losing control of the source of harmful radiation, Rolls Royce has breached its duty of care and caused immediate and future danger/harm for its employees. 5 Disease 5.1 Government s failure to conduct a thorough review on Mesothelioma claims. Under LASPO, personal injury claimants may pay up to 25% of their damages towards their legal costs and insurance premiums. The House of Lords secured an amendment which excluded mesothelioma claims from this and required the government to review and report on the likely impact upon claimants before any move to include them. The High Court in R (on the application of Tony Whitson) v Justice Secretary [2014] EWHC 3044 (Admin) has held that the Ministry of Justice would be acting unlawfully if it were to include mesothelioma claimants in reforms in the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) without a review and report on the likely impact. Mr Justice William Davis concluded that the government had not conducted a proper review of the likely effects upon claimants in this case.

6 Landmark judgment on mesothelioma In a majority verdict of three to two, the Supreme Court has held that the application of the Asbestos Regulations 1931 was not limited to factories manufacturing asbestos products, but included any factory or workshop where the regulated processes took place. The mixing of asbestos to make lagging in any factory or workshop engaged the regulations. The claim, based on breach of regulation 2(a), succeeded even though the claim in negligence and under section 47 of the Factories Act 1937 failed. The Supreme Court has ruled in McDonald (Deceased ) v National Grid Electricity Transmission PLC [2014] UKSC October 2014, that an asbestos-related cancer victim should receive compensation, even though he was not working directly with the toxic substance. Percy McDonald, who died in February 2014 from mesothelioma, was a lorry driver attending Battersea Power Station between 1954 and 1958 to pick up waste products. 6 Fraud 6.1 QOCs protection lost after claimants faked injury DJ Dudley found two claimants to be fundamentally dishonest in their claim for road traffic accident induced whiplash after the defendant asserted there was no contact between the two vehicles. DJ Dudley said there was no doubt in his mind in relation to their dishonesty, ordering the defendants to pay the costs of the trial, reaching 6,000, since their QOCs protection had been lost. In line with QOCs, successful defendants can only recover costs against claimants in limited circumstances; one of them being a finding of fundamental dishonesty. 6.2 No win, no fee arrests IFED have confirmed that two No Win No Fee claims management company employees have been arrested following a referral from a targeted insurer. The suspicions include the suspects impersonating insurance policyholders to fraudulently obtain information about road traffic accidents from insurers. Detectives from the City of London Police s Insurance Fraud Enforcement Department travelled to Bury on 29 October 2014 where the arrests were made at the claims management s call centre. It is believed that the call centre employees telephone members of the public who have been involved in road traffic accidents. They then offer services if the member of the public wishes to make an insurance claim, ordinarily for whiplash. The arrested persons are from Stockport and Bury. 7 Market 7.1 Customer trust in insurance providers is low Research carried out by Price Waterhouse Cooper (PWC) has found that less than one third of customers have confidence in their insurance providers. The statistics ranked below the trust placed in retail banks and financial advisors. The report considered the opinions of 2000 people across the UK showing: 27% of customers trust insurance providers; 32% trusted retail banks; 28% trusted financial advisors; 15% trust investment banks; and 12% trusted fund managers.

7 The insurance risk and regulatory partner at PWC said that tackling this lack of trust must now be an over-riding priority. The survey went on to question which aspects, in particular, contributed towards the distrust. 39% of those surveyed quoted personal experience as reasoning (the most influential factor), followed by transparency of price/terms and conditions (25%), press coverage (25%) and communication with acquaintances (23%). 8 In Europe 8.1 Group of holiday makers receive damages of over 100,000 A group of 16 family members have been awarded 119,000 following illness suffered whilst staying at the Royal Park hotel in Elenite, Bulgaria. The adults cases were settled for 30,000, whilst the children (5 in total) have been awarded 90,000 for symptoms and suffering, which are still experienced 4 years after the holiday. The holiday, taken in July 2010, is reported to have been at a location which appalling and unhygienic, was causing most family members to experience severe abdominal pains and sickness within a few days of arrival. Conditions to cause this are described by the family as food left uncovered for hours with flies visibly seen on the food. Further, there were suspicions by visitors to the hotel that the majority of the food was reused/reheated. Tour operators, Balkan Holidays, have admitted full liability and are no stranger to such claims as 280 other holiday makers have also suffered after staying at the Royal Park Hotel. 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.

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