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Looking ahead

August 2017

Last month we were expecting two major developments imminently – Lord Justice Jackson's review of fixed recoverable costs and the government's response to the discount rate consultation. The ever punctual Sir Rupert delivered his report on schedule but despite much anticipation in the press, the discount rate consultation response did not appear. This was perhaps less of a surprise to stakeholders given the complexity of the issues being considered and the parliamentary upheaval during the consultation process. The government has not, as yet given a date when we can expect the response. 

As parliament has been in recess for the past month there are few developments to report on this month, but we look at the Jackson report and its impact on areas we have been following such as fixed costs in clinical negligence and NIHL claims. The Insurance Fraud Taskforce has published a progress report from 2016. The EU Commission is taking steps to review the Motor Insurance Directive and in particular the problems arising from the 2014 Vnuk decision. We have also added some cases of interest coming to the Court of Appeal in the autumn.

Parliament returns next week but rises again for the party conferences on 14 September, so we wait to see whether there are any substantive developments in this short window. In the meantime we expect to see the 14th edition of the Judicial College Guidelines in the next few weeks and as usual we will report on any significant changes.

Forthcoming cases

Supreme Court

Non-delegable duties: foster carers. The case of NA v Nottinghamshire County Council concerning the abuse of a child by foster parents and the duties owed by local authorities in those circumstances took place on 8 & 9 February 2017.

Personal injury: cross border claims. The appeal in Mapfre Mutualidad Compania De Seguros Y Reaseguros SA & Anor v Keefe on whether a Spanish insured can be joined into the English proceedings already brought against the Spanish insurer, was heard on 7 March 2017.

Police: human rights. In Commissioner of Police of the Metropolis v DSD & Anor, concerning the "black cab rapist" John Worboys, the Court of Appeal upheld a first instance decision that the failure of the Met Police to carry out effective investigations into the victims' complaints amounted to inhuman or degrading treatment contrary to Article 3 of the ECHR. The Met Police are appealing and the hearing took place on 14 March 2017.

Accidents abroad: jurisdiction. The hearing of the appeal in Four Seasons Holidays Inc v Brownlie took place in May with a further hearing on 20 July. The issue is whether the Court of Appeal erred in holding that the tort jurisdictional gateway test under the CPR, which requires that "damage" be sustained within the jurisdiction, is not satisfied by indirect or consequential damage. Judgment is awaited. 

Police: duty of care. The issue in Robinson v Chief Constable of West Yorkshire Police is whether the police should be liable in negligence following an incident in which the claimant was injured when she became caught up in the arrest of a drug dealer. The matter was heard on 12 July 2017.

Supreme Court cases awaiting developments. We await further official details for a number of cases where permission to appeal has been granted:

  • Gavin Edmondson v Haven Insurance which concerns an insurer engaging directly with claimants to conclude their claims which had been commenced in the Portal. We understand the appeal will take place on 5/6 February 2018.

  • Steel v NRAM PLC is a Scottish solicitors’ negligence case concerning negligent misstatements and the existence of a duty of care in a relation to a security transaction.

  • Banca Nazionale del Lavoro SPA v Playboy Club London Ltd & Ors concerns a financial reference given by a bank to an agent acting for a club which ran a casino and whether a duty of care was owed to the club.

  • Barton v Wright Hassall involved the question of whether service of a claim form, falling short of compliance but coming to the attention of the defendant, could be validated.

  • Tiuta International Ltd v De Villiers Surveyors Ltd is a surveyors' negligence case concerning the extent of a lender's loss attributable to the second of two valuations of a property.

  • Dryden & Ors v Johnson Matthey PLC concerns exposure during employment to platinum salts and the issues of actionable injury and pure economic loss. The hearing will take place on 27 & 28 November 2017. Read more in this 12KBW article.

  • The issue in James-Bowen v Commissioner of Police for the Metropolis is whether the police failed in their duty to protect officers' interests when settling an assault claim.

Court of Appeal

Costs: assignment of CFA. The case of Budana v Leeds Teaching Hospitals NHS Trust on the validity of assigning a CFA was leapfrogged to the Court of Appeal and was heard on 5 July 2017 and judgment is awaited.

Costs: proportionality. An appeal from the decision of Senior Costs Judge Master Gordon-Saker about the ‘new’ test on proportionality has been leapfrogged to the Court of Appeal. BNM v MGN Ltd has now been listed for 10/11 October 2017. 

New - Local authority mental health provision: personal injury awards. The question in Tinsley v Manchester City Council was whether a local authority could refuse to provide after-care services to the claimant following compulsory detention in hospital under s.117 Mental Health Act 1983, on the basis that the claimant was in receipt of a personal injury award. At the previous hearing the court held that the personal injury award was to be disregarded. The appeal is to be heard on 10/11 October 2017.

New - Bereavement award: cohabitees. In Smith v Lancashire Teaching Hospitals NHS Trust & Ors the claimant had been cohabiting with her partner for over two years when he died as a result of the defendants' negligence. The case involves a challenge using the ECHR to the present position under the Fatal Accidents Act 1976 that cohabitees are not entitled to a bereavement award. The challenge failed at first instance but in his judgment, Edis J invited parliament to reconsider the law in this area. The appeal is fixed for 7 November 2017.

New - Costs of provisional assessment: Part 36 offers. An appeal will take place in the case of Lowin v Portsmouth & Co Ltd on 5 December 2017. At the previous hearing (an appeal) it was held that Part 36 trumped the provisions for a £1500 cap on the costs of provisional assessment and the claimant was entitled to indemnity costs. Read more on the case in the Gazette.

New - Mesothelioma: breach of duty. In Bussey v Anglia Heating Ltd a widow's claim for damages, following the death of her husband from mesothelioma, failed as she could not prove breach of duty. The judge made it clear that the CA authority of Williams v University of Birmingham (2011) is binding unless and until the Court of Appeal or Supreme Court decide otherwise. The appeal is listed for 23 January 2018.

High Court

MIB agreements: judicial review. The judicial review by road victims' charity RoadPeace in relation to the MIB agreements was heard in January. Judgment is awaited in R (on the application of RoadPeace) v Secretary of State for Transport & the MIB. 


Update - Review of Fixed Recoverable Costs. Jackson LJ published his Review of Fixed Recoverable Costs as promised on 31 July. The soundings from the roadshow earlier in the year were that Sir Rupert was backing away from extending fixed recoverable costs to cases worth up to £250,000. It was not then a huge surprise to see proposals to extend fixed costs only in claims worth up to £100,000 along with the remaining fast track cases not yet subject to FRCs. The report is now being considered by the senior judiciary and the MoJ, and a consultation will follow in due course. Read more in Simon Denyer's comprehensive review Jackson's new report signifies likely move towards extended use of fixed costs into claims worth up to £100,000

The following consultations are awaiting official responses:

Update - Discount rate consultations. The MoJ consultation The personal injury discount rate: how it should be set in future closed on 11 May. When the consultation was published, i.e. before the election announcement, the government had committed to responding by 3 August.  Despite much anticipation in the press in the run up to the day, the MoJ confirmed that the response would not be published that day but in due course. It seems clear that work is going on behind the scenes given the comments of Stephen Barclay at the ABI Brexit conference in June and Lord Keen during the House of Lords debate in July. The most recent sign of activity is this month's Scottish consultation (open until 8 September) on provisions to allow the courts in Scotland the power to impose a PPO, thereby addressing an anomaly between the PPO provisions in England & Wales and those in Scotland. This was an issue that many stakeholders had raised when responding to the discount rate consultation to ensure that there is a genuine choice available to claimants on how to settle their claims across all the jurisdictions. Read more about the current issues surrounding the discount rate in our June report Discount Rate: The Bigger Picture.

Reforming the soft tissue injury (whiplash) claims process - Part 2. In February the government published the first part of its response to the Reforming the soft tissue injury (whiplash) claims process consultation. It then incorporated its proposed reforms to the whiplash claims process within the Prisons and Courts Bill which we reviewed in our update earlier this year. Although the Bill's progress ended with the dissolution of parliament we now know that the whiplash provisions will be reintroduced within the Civil Liability Bill announced in the Queen's Speech. In the meantime a second part to the consultation response is still awaited and is due to look at the outstanding proposals considered, including, the Insurance Fraud Taskforce recommendations, credit hire and rehabilitation. Last month, Justice Minister Sam Gyimah gave a familiar response to the question of when a response would be published…"in due course".

Update - Fixed recoverable costs for clinical negligence claims. The consultation on fixed recoverable costs in clinical negligence claims was published on 30 January. It sought views on proposals to introduce a mandatory system of fixed costs for claims valued between £1,000 and £25,000. To ensure that patients maintain access to justice, the proposals also aim to streamline the system and incentivise earlier resolution of claims. The consultation closed on 1 May 2017 and according to early reports both the Law Society and APIL highlighted the need for the claims handling process to be reformed before fixed costs can be effective. In his report this month Jackson LJ acknowledged the difficulties in fixing costs in clinical negligence claims. He therefore recommends (Chapter 8) that the Department of Health and the Civil Justice Council set up a working party with both claimant and defendant representatives to develop a bespoke process for handling clinical negligence claims up to £25,000 accompanied by a grid of fixed recoverable costs.

Credit hire: model directions. In June, the Civil Procedure Rule Committee issued a Consultation on the "model order for directions to be used in credit hire cases". Acknowledging that the whole area of credit hire "remains a highly contentious area of litigation" the CPRC has identified what they see as relatively simple steps that can be taken to narrow the issues and present the judge with the necessary evidence to make a determination. The proposed directions concern witness evidence and disclosure on impecuniosity and the agreement of hire rates. Stakeholders have been urged to confer to try to achieve a consensus or risk a solution being imposed. The consultation closed on 1 August 2017. 

Motor prosecutions: review of driving offences and penalties. Having first been announced in August 2013, the long awaited consultation arrived on 5 December 2016 the day after a press release announcing that “dangerous drivers who kill are set to face life sentences”. The consultation sought views on road traffic legislation relating to offences of causing death or serious injury. In particular, views were sought in relation to: the distinction between "careless" and "dangerous" driving; a perceived "gap in the law" for causing serious injury by careless driving; maximum penalties for causing death; and driving disqualifications. The consultation closed on 1 February 2017 and the next day the MoJ announced that the response has been one of the highest for an MoJ consultation. A response is awaited, although on 29 June in response to a written question Justice Minister Dominic Raab indicated that the government is considering the responses and that any announcement will be made... "in due course". 

Driverless technology: House of Lords inquiry. Soon after the Department for Transport consultation on driverless technology closed, the House of Lords Science and Technology Committee launched an inquiry into the future uses of driverless vehicles in the UK. The Committee published its report in March highlighting that this is a fast-moving area of technology and that there is a lot for Government to do. There needs to be central co-ordination of strategy across the various sectors that could benefit from Connected and Autonomous Vehicles (CAV) and not just a focus on private road vehicles. There also needs to be further research and sharing of expertise and knowledge. The Inquiry homepage still indicates that a government response is awaited.

Update - Motor insurance: implications of ECJ Vnuk ruling for UK legislation. In December the Department for Transport published its consultation Motor Insurance: consideration of the 'Vnuk judgment' to look at “options for amending domestic motor insurance law in light of the European Court of Justice ruling…” The government is considering two options: one would result in UK law reflecting the decision in Vnuk and broadening the scope of insurance requirements; the other would be based on the (seemingly) preferred suggestion set out earlier this year in the European Commission Roadmap which would involve amending the Motor Insurance Directive, albeit acknowledging that the Commission has not actually finalised any decisions yet on this. The consultation closed on 13 April 2017 and the government's response is awaited, but on 26 July, the Department for Transport published a summary of responses noting that of the four policy options set out by the European Commission, the proposal to limit compulsory motor insurance to vehicles used ‘in traffic’ proved the most popular. A day earlier the European Commission published a new consultation document on the issue. It is an Inception Impact Assessment, the aim of which is to inform stakeholders about the Commission's work to allow them to provide feedback and then to participate in a more substantive consultation. The request for feedback was open until 21 August and stakeholder responses have been published on the consultation homepage including a response from the DfT who ask for the Directive to be changed so that it only applies to motor vehicles in traffic. This exercise forms part of a wider evaluation of the Motor Insurance Directive known as a REFIT evaluation and on that the Commission has published a wider consultation which will close on 20 October 2017.  

Claims Management Regulation: fees cap. In February 2016 the MoJ published a consultation on proposals to cap the level of fees that regulated CMCs can charge consumers. It is currently only proposed that the cap should apply to the financial products and services claims sector. However, the consultation did invite views on whether fee controls in the personal injury sector should be considered as well. The consultation closed on 11 April 2016 and although a response is still awaited we now know following the Queen's Speech that the proposed Financial Guidance and Claims Bill includes a new power which will allow the Financial Conduct Authority to cap the fees that Claims Management Companies charge consumers. Our understanding is that the Bill provides the power for the FCA to control charges in any of the sectors it regulates but places a duty on the FCA to do so in the financial claims sector.

Legal services regulation: removing barriers to competition. In July 2016 the MoJ announced a consultation on proposals to reduce barriers to market entry, and regulatory burdens on Alternative Business Structures in legal services. Lord Faulks’ ministerial statement also mentioned the Government’s intention to consider a further consultation on regulatory independence. The current consultation closed on 3 August 2016.

Solvency II: Treasury Select Committee InquiryOn 13 September 2016 the Treasury Committee launched an inquiry into the new regime for the regulation of insurance, which was implemented in January 2016. The inquiry was exploring the impact of the directive, and the options available to the UK following the Brexit decision, in more detail. Over the last few months the Committee had been taking oral evidence but the Inquiry homepage confirms that the inquiry closed due to the general election. It does however, add that if an inquiry on this subject is held in future, the Committee may refer to the evidence already gathered as part of this inquiry.


Given the short period of time between the return of Parliament and the summer recess, there were few legislative developments in that time, although the Financial Guidance and Claims Bill made it to the Committee stage and is due to resume on 6 September. Below is a reminder of the Bills announced in the Queen's speech and the Law Commission Bills that are outstanding. 

The Queen's Speech on 21 June announced 27 Bills and draft Bills with the aims of: 

  • delivering a Brexit deal that works for all parts of the United Kingdom;

  • building a stronger, fairer country by strengthening our economy, tackling injustice and promoting opportunity and aspiration.

There will be no Queen's Speech next year, as this parliamentary session will last for two years to allow MPs as much time as possible to consider the Brexit legislation; eight of the 27 Bills relate to Brexit.

In the past few months we had been following three Bills whose progress came to an end with the dissolution of parliament. However it appears that the provisions of interest to insurers will return in some of the new Bills put forward in furtherance of the second aim, together with a new Bill containing provisions on claims management regulation:

Whiplash reform: Civil Liability Bill. The aim of this Bill is "to crack down on fraudulent whiplash claims" with a view to reducing motor insurance premiums by about £35 per year. The briefing notes to the Queen's Speech say the Bill will "ban offers to settle claims without the support of medical evidence and introduce a new fixed tariff of compensation for whiplash injuries with a duration of up to 2 years." It is therefore expected that the new Bill will broadly mirror the whiplash provisions of Part 5 of the Prisons and Courts Bill, and perhaps this time there will be an opportunity for improvement around the definition of claims falling into the new process. It is also worth noting that the briefing notes also talk about "ensuring that full and fair compensation is paid to genuinely injured claimants" and this may be an indication that the Bill could be used as a vehicle to introduce any changes to the method of calculating the discount rate when a response to the consultation is available. We do not yet know whether the Justice Committee will resume its inquiry into the whiplash provisions and the proposed increase in the small claims track, although we now know that Bob Neill has been re-elected as Chair. There has also been confirmation in a written response (July) from Sam Gyimah that the increase to the small claims track limit will also still go ahead.  

Online court: Courts Bill. This Bill will "reform the courts system in England and Wales to ensure it is more efficient and accessible, and in doing so utilise more modern technology". Presumably, although it has not yet been confirmed, this Bill will pick up from Part 2 of the Prisons and Courts Bill which included provision for the legal foundations for the introduction of new online procedures and online dispute resolution (ODR), and for the creation of a new online court that could deal with low value money claims below £25,000, as recommended by Lord Justice Briggs’ Civil Courts Structure Review.

Driverless technology: Automated and Electric Vehicles Bill. This Bill will include provisions to extend compulsory motor vehicle insurance to cover the use of automated vehicles and so would appear to reintroduce the insurance provisions that had been proceeding within the Vehicle Technology and Aviation Bill.

Claims management regulation: Financial Guidance and Claims Bill. This Bill was introduced in the House of Lords on 22 June 2017. Part of the Bill provides for three financial advice bodies to be combined into one to ensure that people are able to access the help and advice they need to manage their finances. Perhaps of more interest in the claims handling arena though will be the provisions transferring claims management regulation to the Financial Conduct Authority; granting the FCA the power to cap the fees CMCs can charge; and ensuring a more robust authorisation process for new firms entering the market. The transfer of regulation follows on from the 2016 report of Carol Brady and the power to cap fees follows on from last year's consultation. As mentioned above our understanding is that the Bill provides the power for the FCA to control charges in any of the sectors it regulates but places a duty on the FCA to do so in the financial claims sector. You can follow progress of the Bill here and as indicated above, it has already reached the Committee stage which is due to resume on 6 September.

The following Law Commission draft Bills are also awaiting further developments:

Deprivation of liberty: Mental Capacity (Amendment) Bill. In 2014 the Law Commission began a review of the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act. The DoLS aim to protect people who lack mental capacity, but who need to be deprived of liberty so they can be given care and treatment in a hospital or care home. If a person’s right to liberty needs to be infringed in other settings, an authorisation must be obtained from the Court of Protection. The DoLS have been criticised for being overly complex and excessively bureaucratic, placing increasing burdens on local authorities. In 2015 the Law Commission held a consultation and in 2016 published an interim statement. On 13 March 2017 the Law Commission published its final report along with a draft Bill. It recommends that the DoLS be repealed with pressing urgency and sets out a replacement scheme called the Liberty Protection Safeguards. In addition the draft Bill makes wider reforms to the Mental Capacity Act which ensure greater safeguards for persons before they are deprived of their liberty. A Government response is now awaited.

Insurance contract law reform: draft Insurable Interest Bill. In April 2016 the Law Commission and the Scottish Law Commission published a draft Bill following their review of the issue of Insurable Interest, having previously made proposals for reform in 2008 and 2011. They were asked to return to the issue due to the increased numbers of requests to write policies which include cover for children, cohabitants and to insure ‘key employees’ for substantial amounts. The draft Bill is intended to reflect the proposals set out in the issues paper and the Law Commissions invited comments on the draft Bill by 20 May 2016 with a view to publishing a final draft Bill and report in autumn 2016 but there have been no further developments to date. 

Also on the horizon...

Update - Insurance Fraud Taskforce. The IFT published its final report in January 2016 and in a written ministerial statement in May 2016 the Government welcomed the report and accepted the seven recommendations addressed to it in relation to low value personal injury claims. Since then the IFT has met to consider progress to date and the further work required. Then in the November 2016 whiplash consultation the Government took the opportunity to obtain views on the implementation of certain of the IFT's recommendations. These included a recommendation to amend the QOCS rules where a claimant discontinues less than 28 days before the start of a trial. As mentioned above, part two of the consultation response is due to cover the question of implementing the recommendations from the IFT. In the meantime, earlier this month the IFT published a report (completed in February) outlining the progress made during 2016 on the original recommendations. Both the IFB and the MIB published their support for the report with the latter adding further updates on the current position of projects outlined in the report. 

Update - MedCo. Following the MoJ’s announcement last October of the revised Qualifying Criteria for MROs, effective from 8 November 2016, MedCo suspended 134 shell companies for failing to comply with the new Qualifying Criteria. This change, together with the change to the search criteria announced earlier in the year were introduced to tackle the gaming of the MedCo system (read more in this update). MedCo has since reported on a range of enforcement action: at the end of May it suspended 23 MROs and 14 Direct Medical Experts for failing to upload medical case data to the MedCo system; on 6 June it reported the suspension of a further 21 "shell" companies for failing to meet the Revised Qualifying Criteria; and a week later announced that it had removed Tier 1 status from four MROs, reclassifying them as Tier 2 and had suspended a further two Tier 1 MROs. This month MedCo has flagged that there has been "inappropriate behaviour" towards the audit team. In the event of such behaviour in future, the audit will be aborted and it is likely to result in an immediate suspension of the MRO from the system until the audit has been completed. More details can be found on the MedCo homepage.

Claims Management Regulation. Carol Brady published a final report following her independent review of claims management regulation in March 2016. The Treasury and the MoJ had commissioned the review to examine the perception of widespread misconduct among CMCs and to make recommendations to improve the regulatory regime. It was then announced in the budget statement, also in March 2016 that responsibility for regulating CMCs would be transferred from the MoJ to the FCA and since then we had been awaiting information on when the primary legislation required to transfer regulation to the FCA would be ready. We now have that legislation in the form of the Financial Guidance and Claims Bill referred to above. The Bill contains the provisions for the transfer and also gives the FCA the power to cap the fees CMCs can charge.

Holiday sickness claims. Following recent media reports of an explosion in fake holiday sickness claims, the government moved swiftly to announce (July) that it had asked the Civil Procedure Rule Committee to look at the rules governing the costs of holiday claims with a view to bringing them into the fixed recoverable costs regime. The press release also indicated that ministers would soon be asking the Civil Justice Council to look at the rules around how low value personal injury claims more generally are handled to reduce the incentives to bring claims lacking merit.

Update - NIHL claims: Government action. In June 2015 the ABI published its report Tackling the Compensation Culture: Noise Induced Hearing Loss, improving the claims system for everyone which highlighted concerns about the increasing numbers and cost of NIHL claims. In late July, the MoJ announced that in response to those concerns it had asked the Civil Justice Council to consider the issue and make recommendations. They were to consider how a fixed costs regime for NIHL cases might work and how the handling of these claims might be improved. The group was aiming to prepare an initial report by November 2015 with a final report by April 2016 but as the year went on hopes of seeing it before the end of the year dwindled especially when in November Jackson LJ announced his review of fixed recoverable costs. As suspected, Jackson LJ incorporated this area within his report. He has endorsed a process for dealing with NIHL costs and a fixed costs grid negotiated by the Civil Justice Working Group. He confirms that the final report is with the CJC for approval and anticipates that it will be published soon. Simon Denyer reviews the proposals as part of his analysis of Jackson's report.

Mesothelioma claims: LASPO funding provisions. In late 2014 following a Justice Select Committee inquiry, the Government decided not to end the LASPO exemption on recoverability in mesothelioma claims. They said a further review of the likely effects of the funding reforms on mesothelioma claims would form part of the Post Implementation Review of LASPO. A Commons Briefing Note on mesothelioma claims last year speculated this would happen over 2017/2018. On 17 January, Justice Minister Sir Oliver Heald QC attended an All-Party Parliamentary Group meeting on Legal Aid and announced that a post-legislative memorandum on LASPO would be sent to the Justice Select Committee before May ahead of a full post-implementation review of the Act to be conducted by April 2018. Whilst the focus of this meeting was on Legal Aid, we presume that the full review will include a review of the mesothelioma provisions. Inevitably this review will have to await the new parliamentary session.

Civil Courts Structure Review: LJ Briggs' Final Report. On 27 July 2016, Lord Justice Briggs published his final report following his review of the structure of the civil courts. There was no change from the headline recommendation of the interim report, namely the introduction of an online court capable of handling claims with a value up to £25,000. A detailed summary can be found in the press release accompanying the report and you can read more in Simon Denyer’s analysis. In January the Lord Chief Justice and the Master of the Rolls issued a Joint Statement confirming that the senior judiciary endorses the final report of the Civil Courts Structure Review, and supports the recommendations made by Briggs LJ. And as reported above, we expect the newly proposed Courts Bill to reintroduce the provisions enabling the creation of the new online court

SRA: thematic review of personal injury sector. In February the SRA announced that it was starting a review to better understand the personal injury market and in August it began approaching a number of firms to participate in its survey. In October the SRA published its research. According to the survey, conducted by ICF Consulting, the perception is that the market seems to be generally working well although there are concerns that require further investigation. These include the quality of medical reports and a lack of knowledge within firms which have moved into areas such as clinical negligence and disease. Read more in Simon Denyer’s update. Work is ongoing to determine the prevalence of the issues highlighted and the SRA is visiting Personal Injury firms to understand how they have adapted following LASPO. The SRA expects to report further this year. In the meantime, in June, campaign group Access to Justice was urging solicitors to report law firms who bring fake holiday sickness claims and says that the SRA is investigating around 15 reports of potential misconduct. Read more in Legal Futures.

CMA legal services study. In January 2016 the Competition and Markets Authority launched a market study to “examine long-standing concerns about the affordability of legal services and standards of service.” An interim report was published in July and the final report followed in December. The CMA found that competition in legal services for individual consumers and small businesses is not working well, and made recommendations to address the issues. In January 2017 the SRA confirmed that it was preparing rules on publishing price information for consultation in the summer. In March the CMA announced that a Remedies Programme Implementation Group (RPIG) has been put together to oversee the implementation of the CMA recommendations. Read more about the RPIG and a possible transparency pilot in Legal Futures. On 29 June the SRA published its response to the CMA recommendations. It now supports the publishing of price information and plans to trial an approach to firms publishing prices in a few areas of the law, such as conveyancing. Read more on this in the Gazette

In the long grass?

Issues where there has been no activity for some time:

QOCS: Civil Justice Council report. In 2014 a new CJC working group was set up to advise on issues arising from the implementation of the Jackson reforms. Part of their remit, was to investigate and report on arguments for and against extending QOCS to other categories of case characterised by an asymmetric relationship between the parties such as actions against the police and solicitors’ professional negligence in injury claims. The report (pdf) was published on 30 June and concluded there is a strong case for extending the principle to police claims. For solicitors’ negligence claims, whilst there may be a case in principle for extending QOCS here, there does not appear to be a similar push for its application. In both cases, they say that any decision to extend QOCS would be a matter of policy for the Ministry of Justice.

Damages Based Agreements: Civil Justice Council (CJC). The Government's response to the CJC review of DBAs is still awaited. In September 2015 the CJC made a number of recommendations but the main issue of interest going into the review was the Government’s decision not to permit hybrid DBAs, and in particular concurrent hybrid DBAs. The Working Group was divided on whether these should be allowed but it concluded that “it was a policy decision which was ultimately one for the Government". Read more in the CJC media release


For further information please contact Alex Fusco, Professional Support Lawyer on 0161 603 5211.

By Alex Fusco

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