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Looking ahead

June 2018

The Civil Liability Bill has continued to dominate the agenda this month finishing its passage through the House of Lords, including an animated debate at Report stage. In the meantime, the Scottish Government has published a Bill for consultation on its proposals for taking forward reform of the discount rate in Scotland. We reviewed the Bill and compared it with the proposals for England and Wales in this update and will continue to follow its progress in our Scotland Focus. The FCA has also published a new consultation on its proposals for regulating CMCs when regulation is transferred to it in April 2019, and the Law Commission has published its final draft Bill on insurable interest for consultation. We also report on the SRA's response to its 'Looking to the future' consultation which has already drawn criticism for its plans to allow solicitors to deliver services from non-authorised entities and as freelancers.

We look at these developments below along with our usual round up of forthcoming cases and other issues on the horizon.

Forthcoming cases

Supreme Court

Update - 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 and we had been awaiting a judgment. This month the case disappeared from the Supreme Court list of current cases and we have been informed that an Order on file from May this year records that the reference to the UKSC has now been withdrawn.

Police: duty of care to employees. The question in James-Bowen v Commissioner of Police for the Metropolis is whether a person who is sued in civil litigation for alleged misconduct by his employees (or others for whom he is vicariously liable) owes those employees a duty of care in the conduct of his defence. The hearing took place on 6/7 March 2018 and judgment is awaited.

Negligence: banking. The case of 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. The appeal took place on 24 April and judgment is awaited.

Clinical negligence: receptionist duty of care. In Darnley v Croydon Health Services NHS Trust the issue is whether a non-clinically trained A&E receptionist owed any tortious duty to provide accurate information to the claimant about waiting times. The hearing took place on 7 June and judgment is awaited.

Local authority: protection from harassment. The Court of Appeal in CN v Poole Borough Council held that a local authority owed no duty of care in the exercise of its social services child protection functions, to protect two children from harassment by a neighbouring family. The Supreme Court will hear the appeal on 16/17 July 2018. Read more on the Court of Appeal decision in our update from December.

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

  • Perry v Raleys Solicitors is a professional negligence claim concerning the alleged under-settlement of a vibration white finger claim. Read more in this Crown Office Chambers update.

  • In R&S Pilling T/A Phoenix Engineering v UK Insurance Limited the issue in the Court of Appeal was whether motor insurance extended to liability for damage to the property of third parties as a result of fire caused by repair work being carrying out to a  stationary car, i.e. whether the repairs amounted to "use" of the vehicle. We understand that the hearing is due to take place on 13 December 2018. 

  • In Cameron v Hussain & LV= the Court of Appeal held that a claimant was able to bring her claim for damages arising out of a road traffic against an unidentified driver.

Court of Appeal

Asbestos: access to documents from settled litigation. Late last year Master McCloud granted an application by the Asbestos Victims Support Groups Forum UK for disclosure of the documents referred to in product liability litigation which had settled earlier in 2017. The disclosure contained "extensive quantities of historic material and records relating to asbestos safety and regulation" relating to the question of what was known and when about the safety of asbestos. The appeal in Dring (For and on behalf of The Asbestos Victims Support Groups Forum (UK)) v Cape Distribution Limited & Ors took place on 18 June 2018 and judgment is awaited.

Applicable law: accident in France. The issue in Committeri v Club Mediterranee SA & Anor was whether French or English law applied where a claimant had a climbing accident in France. The answer to the question depended on whether the claim was contractual or non-contractual in nature. The judge held the claim was contractual so that English law applied and this meant that the claimant had no viable claim. Last month we noted the appeal was listed for 9 May but it now appears to be taking place on 3 July.

New – Professional negligence: solicitors. The case of Lyons v Fox Williams LLP concerns the failure of a solicitor to advise the claimant about his rights under his employer's insurance policies following a road traffic accident and the extent of the solicitor's retainer. The appeal is due to take place on 3/4 July.

New – Legal professional privilege: internal investigations. ENRC are appealing against a first instance decision in which it was held that LPP did not apply to certain documents created during internal investigations undertaken by solicitors and forensic accountants. The appeal in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited is due to take place on 3 July.

New – Clinical negligence: ex turpi causa. The case of Henderson v Dorset Healthcare University Foundation NHS Trust concerns a claim for damages by a patient suffering from mental health issues against an NHS Trust for breaches of duty which resulted in the patient killing her mother. At first instance Jay J considered himself bound by authorities preventing such an ex turpi causa claim from succeeding. The appeal will take place on 10/11 July.

Update (new date) - Vicarious liability: connection with employment. At first instance in Bellman v Northampton Recruitment Ltd it was held that an employer was not vicariously liable for an assault committed by its director after a work Christmas party. 12 KBW outline the grounds on which permission to appeal has been granted and you can read more on the first instance decision in our update from last year. This appeal also appears to have moved from the previously reported 12/13 June to 18/19 July.

Costs appeals in June: Last month, Nick Thornsby previewed two costs appeals of strategic importance. The cases are:

Late acceptance of Part 36 offer: Hislop v Perde and Kaur v Committee for the time being of Ramgarhia Board Leicester, relate to the extent of a claimant's entitlement to costs where a defendant accepts the claimant's Part 36 offer after the expiry of the relevant 21 day period in a case to which the fixed recoverable costs regime applies. The appeals were heard together on 20 June.

QOCS and multiple defendants: Cartwright v Venduct Engineering Ltd & Ors concerns the circumstances where a claimant obtains an order for damages against one defendant but is (subject to QOCS) liable for a costs order in favour of a different defendant. It is being heard on 28 June.

Consultations

The following consultations are currently open:

New – FCA: regulation of claims management companies. In anticipation of the transfer of regulation of CMCs to the FCA on 1 April 2019, the FCA has published a consultation setting out the draft rules and guidance they propose to make in relation to claims management activities and the standards they think CMCs regulated by the FCA should have to meet. They have identified a number of harms in the sector which the proposals are aimed at addressing. Read more in the FCA press release and Legal Futures. Comments are requested by 3 August.

Nuisance calls and messages: action against directors. On 30 May the government published a consultation proposing measures to hold company directors personally responsible for breaking the law in relation to unsolicited calls. The measures would provide the Information Commissioner’s Office (ICO) with the powers it needs to hold company directors directly responsible with further fines of up to £500,000. The consultation closes on 21 August. Read more in the press release.

Update - Motor insurance: implications of ECJ Vnuk ruling for UK legislation. In December 2016 the Department for Transport held a 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…" Although the government has never formally responded we know that its preferred option was for the Motor Insurance Directive to be amended in a way to avoid having to broaden the scope of insurance requirements to reflect the decision in Vnuk. The European Commission had also requested feedback on the issue in two consultations, having seemingly indicated in a 'Roadmap' published in June 2016 a preference to amend the scope of the Directive so that it only related to accidents caused by motor vehicles "in the context of traffic". It came as a surprise therefore when at the end of May the Commission presented its proposals to amend the Directive but to reflect the position in Vnuk so that "[t]he 'use of a vehicle' means any use of the vehicle, intended normally to serve as a means of transport, that is consistent with the normal function of that vehicle, irrespective of the vehicle's characteristics and irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion." The Commission's press release provides a short summary of the proposal and additional documents can be found here. Of those, the detail of the proposal will be of interest as it seeks feedback by 24 July 2018. Read more in our update this month. 

The following consultations are awaiting official responses:

If any client wishes to request any of the DWF consultation responses referred to below they can do so by emailing alex.fusco@dwf.law

Update - Small claims track limit increase. Last December the Justice Committee launched a new inquiry into the government's proposals to raise the small claims track limit for personal injury claims from April 2019 (for RTA claims). Last month the Committee published its report with the headline finding that "increasing the small claims limit for personal injury (PI) creates significant access to justice concerns" and "[t]he small claims limit for personal injury should not be increased unless Ministers can explain how it will make sure that access to justice is not affected."  Simon Denyer analysed the findings in this update. This month, the government narrowly defeated an attempt to introduce into the Civil Liability Bill a provision limiting the power of the government to increase the small claims limit unless justified by RPI increases since 1999 and only then up to £1,500, with further increases being restricted to no more than £500 at a time again based on inflationary rises. The government did however agree to further consider the proposal to exempt vulnerable road users from the £5,000 limit. The government's formal response to the Justice Committee Response is awaited. In the meantime, the Commons Library has this month published an updated briefing paper on the proposals to increase the small claims track limit.

Reforming the soft tissue injury (whiplash) claims process - Part 2. In February 2017 the government published the first part of its response to the Reforming the soft tissue injury (whiplash) claims process consultation, to which DWF responded. It then incorporated its proposed reforms to the whiplash claims process within the Prisons and Courts Bill which we reviewed in our update last year. That Bill's progress ended with the dissolution of parliament but the whiplash provisions have been reintroduced within the Civil Liability. In the meantime a second part to the consultation response is still awaited and is due to look at the outstanding proposals including, the Insurance Fraud Taskforce recommendations, credit hire and rehabilitation. In March, Justice Minister Rory Stewart repeated the familiar response to the question of when a response would be published…"in due course".

Review of Fixed Recoverable Costs. Jackson LJ published his Review of Fixed Recoverable Costs, to which DWF contributed, on 31 July. His proposals are to extend fixed costs in claims worth up to £100,000 along with the remaining fast track cases not yet subject to FRCs. The report is being considered by the senior judiciary and the MoJ, and a consultation will hopefully be launched before too long. The government's response to the clinical negligence fixed costs consultation confirmed in February that "the Lord Chancellor will announce the next steps in due course," and in March, Lord Keen responded to a question, saying "the government is considering the report and will set out the way forward in due course". In April in his speech at the APIL conference Lord Keen made similar comments but added, "the government will consult before implementing any changes so stakeholders will have a further opportunity to express their views."

Update - Review of low value personal injury claims including package holiday claims. In last October's call for evidence on measures to address holiday sickness claims, the MoJ also invited views on low value claims more generally and asked the Civil Justice Council to consider steps that might be taken to prevent unmeritorious claims and to resolve meritorious ones more quickly and with reduced costs. Now that the work is complete on the new Pre-action protocol for resolution of package travel claims which came into force last month, attention has turned to the review of low value claims. A cross industry working party met for the first time on 22 May to identify areas of focus which will include CMCs, fraudulent behaviour, processes, MedCo and expert evidence generally, ADR, the portal, sanctions and technology. The group is due to report to the CJC in the summer.

Credit hire: model directions. Last June, the Civil Procedure Rules 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 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 were urged to confer to try to achieve a consensus or risk a solution being imposed. The consultation closed on 1 August 2017 and DWF responded. 

Update - Civil procedure: disclosure. A Judiciary press release published on 2 November 2017 detailed proposals for a mandatory disclosure pilot scheme to run for two years in the Business and Property Courts. A Disclosure Working Group was set up in May 2016 to look into widespread concerns about the excessive cost, scale and complexity of disclosure with a view to achieving a wholesale cultural change in the disclosure process. "The unanimous view of the Working Group is that a wholesale cultural change is required and that this can only be achieved by the widespread promulgation of a completely new rule and guidelines on disclosure which will apply for the majority of cases proceeding in the Business and Property Courts." There has been a slight delay in the rules being approved, as this was due to happen in March/April but last week, Litigation Futures reported that the pilot will begin in January 2019 and that final approval of the rules will be sought at the CPRC meeting next month.

Default County Court Judgments. At the end of December the MoJ launched a consultation looking at the processes for money claims issued in the County Court. They have particular interest in views on limiting the circumstances in which an individual can have judgment entered in default against them without their knowledge. DWF submitted a response to highlight the issue of judgment being entered against policyholders in insurance claims when it is an insurer who will ultimately pay the claim – the MoJ had not identified this scenario in its consultation. The consultation closed on 21 February.

McKenzie Friends. In February 2016 a Judiciary consultation Reforming the courts’ approach to McKenzie Friends was launched following a Working Group review looking into the increasing numbers of fee charging McKenzie Friends. The consultation invited views on possible reform including the revision of Practice Guidance, or codification of the practice and procedure relating to McKenzie Friends. As part of that, the consultation asked whether there should be a ban on fee charging McKenzie Friends. DWF responded. In September 2017 the Judicial Executive Board announced that a large number of responses were received and that a further working group would review the proposals in light of the responses. Read more in the Gazette.

Update - Legal services: insurance and compensation. In March the SRA launched a consultation on changes to the legal insurance and compensation rules with proposals including limits to the compensation fund and reducing minimum PII cover. The SRA says these changes will give firms more flexibility to choose the right level of insurance to suit their business and clients, while making sure there are still appropriate protections for users of legal services. The proposals include reducing the maximum single claim limit to £500,000 (£1 million for conveyancing); keeping the need for a six year run off period of insurance after a firm closes but capping the overall level of cover at £3m for firms that have done conveyancing work and £1.5m for other firms; and removing the need for compulsory insurance to include cover for large commercial clients. The consultation closed on 15 June and some of the responses have started to emerge, including criticism from both the Law Society and the ABI.

Legislation

A quick reminder of the Bills that received Royal Assent last month:

Claims management regulation: Financial Guidance and Claims Act 2018. This Act received Royal Assent on 10 May. The provisions relating to claims management regulation are those which came out of the 2016 Carol Brady review and the consultation on capping fees. The most straightforward provision during the passage of the Bill was the transfer of regulation to the FCA. After many debates on banning cold calling and capping fees chargeable by CMCs the final outcome was a ban on such calls in relation to claims management services unless prior consent has been given. Most of these provisions require secondary legislation to bring them into force and HM Treasury ran a technical consultation on the proposed regulations which closed on 1 June.

Data Protection Act 2018. This Act received Royal Assent on 23 May with its main provisions commencing on 25 May. The Act widens the reach of GDPR which as a Regulation is already directly applicable in the UK. In this update Jamie Taylor looks at some of its main provisions from an insurance perspective: Data Protection Act 2018: What is it and what does it mean for insurance?

Outstanding Bills

Update - Whiplash reform: Civil Liability Bill. The Civil Liability Bill which was introduced in the House of Lords on 20 March contains the government's whiplash proposals to "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 also contains the provisions for changing the method of setting the discount rate. This month the Bill concluded its passage through the House of Lords. Before the Report stage the government made a significant concession by including the detailed definition of whiplash within the Bill. The Report stage debate on 12 June was dominated by an attempt by Lord Woolf to remove the concept of the tariff from the Bill arguing that damages should be for judicial determination. The government narrowly defeated that challenge and also an attempt to restrict the ability of the government to increase the small claims track limit. The discount rate provisions had an easier time with almost universal support for a number of proposals aimed at completing the first review as soon as possible, including a return to the original plan of not using the panel for the first review. Read more in our update. At Third Reading yesterday (27 June) only a few amendments were tabled, relating to the discount rate provisions including a further attempt by Lord Faulks to increase the review period from 3 to 5 years. This time the government accepted the amendment along with a request to commence the discount rate provisions as soon as the Bill receives Royal Assent in order to trigger the first review procedure as soon as possible. Lord Beecham however fired a warning shot at the end of the debate of Labour's intention to challenge a number of the whiplash provisions in the Commons. Read more in our update today. You can follow the Bill's progress on the Bill's webpage and there is also a helpful summary of recent developments here. Update 29 June: The Bill had its first reading in the Commons yesterday (28 June).

Update - Online court: Courts Bill. The Queen's Speech stated that 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".  We had presumed that this Bill would 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. In March, the Lord Chancellor David Gauke said, "I hope to be able to bring forward further news on the courts Bill in the near future". Last month we reported that the newly introduced Courts and Tribunals (Judiciary and Functions of Staff) Bill which will allow judges to delegate tasks to court staff was not the Bill we expected. There also appeared to be some doubt about whether there would be legislation to implement LJ Briggs' recommendations, with Coulson J and Birss J indicating at the recent CPRC open meeting on 11 May that there is no over-arching online court and no indication that legislation will be put in place. However, this month, the chief executive of HMCTS was reported to have said there will be further legislation 'to underpin the online court' as soon as parliamentary time allows. In the meantime, the new Bill passed its Second Reading in the Lords, although not without criticism.

Update - Driverless technology: Automated and Electric Vehicles Bill. This Bill was introduced to the House of Commons on 18 October. Part 1 of the Bill deals with the insurance of automated vehicles and Part 2 makes provision in relation to charging of electric vehicles. The Bill quickly passed through the Commons and last month the House of Lords Committee stage took place with debates on 9 and 17 May, but with very little discussion of the insurance provisions. This month it passed through the Report stage and Third Reading. At the Report stage the government tabled a number of amendments relating to the definition of the automated vehicle, to clarify exactly when and where the provisions of the Bill will relate to such vehicles. A new clause was also inserted requiring a report on how the legislation is working after a set period of time. On 26 June the Commons agreed to the Lords amendments and the next step will be Royal Assent. A helpful Commons Briefing Note was published earlier this month explaining the policy background and contents of the Bill. More information on the Bill's progress can be found here

We have also been following progress on two Law Commission draft Bills:

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. In March 2017 the Law Commission published its final report along with a draft Bill. It recommended 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. In February the Joint Select Committee on Human Rights launched an inquiry into the proposed reform of the DoLS and whether it is striking the right balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous. In March, the government published its final response in which it sets out its provisional views on the individual proposals. Broadly it agrees with the Liberty Protection Safeguards model but it also wishes to consider the proposals as part of its review of the Mental Health Act and in the wider health and social care context, so work will continue to be done to move towards implementation. Read more from the Law Commission and the Gazette. In the meantime, at the beginning of the month the Independent Review of the Mental Health Act published its interim report

Update - 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 was 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. The project was then put on hold due to other priorities within the team but on 20 June the Law Commission published their updated draft legislation. Comments on the updated draft Bill are welcome until 14 September 2018. Read more in the Law Commission press release.

Also on the horizon...

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 recommendations in relation to low value personal injury claims. In the whiplash consultation in late 2016 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, which covers the IFT recommendations, is still awaited. In the meantime, last August 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. In October, following an IFT recommendation the Claims and Underwriting Exchange (CUE) was expanded to accept data relating to travel insurance claims. In December Justice Minister Dominic Raab answered a question on the steps being taken to implement the IFT's recommendations and to reduce personal injury fraud generally. In February the SRA published a report on what it has been doing in response to the IFT report.

MedCo. In October 2016 the MoJ published revised Qualifying Criteria for MROs, effective from 8 November 2016. MedCo immediately suspended 134 shell companies for failing to comply with the new Qualifying Criteria and over the course of the next 6 months or so, MedCo reported on a range of enforcement action. Last August MedCo warned against "inappropriate behaviour" during the audit process and in October MedCo published an FAQ document (pdf) to address common issues arising out of the Guidance supporting the revised Qualifying Criteria. In November MedCo published its annual report and financial statements and in December gave an update on its audit programme. More details of these developments can be found on the MedCo homepage where last month a number of revisions to guidance and the user agreements have been published.

Update - 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 that responsibility for regulating CMCs would be transferred from the MoJ to the FCA. This is being taken forward in the Financial Guidance and Claims Act discussed further above and HM Treasury has recently consulted on the accompanying draft regulations. A new consultation published last month seeks views on proposals to give the ICO powers to impose fines of up to £500,000 on individual directors of companies which breach the rules on nuisance calling. This month the FCA has launched a consultation on their proposals for regulating CMCs from April 2019.

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 response to those concerns the MoJ asked the Civil Justice Council to consider the issue and make recommendations. The CJC published its long awaited report in September 2017, although Jackson LJ had spoilt the surprise by announcing and endorsing the agreed fixed recoverable costs matrix as part of his own review (see Simon Denyer's review of the proposals). The new news then was the proposals for reform of the claims handling process. You can read more about the proposals in our comprehensive update. We also took the opportunity to comment on the handling of NIHL claims in the call for evidence in relation to holiday sickness claims and low value personal injury claims.

Update - 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 of additional liabilities 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. In January, the then Justice Minister, Dominic Raab said the government was committed to carrying out the post-implementation review of Part 2 of the LASPO Act by summer 2018 but this became increasingly unlikely. In his speech at the APIL conference in April Lord Keen confirmed that the review of Part 2 will take place this year, that feedback will be sought from stakeholders and that the Civil Justice Council will host a stakeholder conference to consider the impacts of Part 2. This month Rory Stewart in replying to a question about the small claims track said that the government intends to publish the post-implementation review of Part 2 by the end of 2018. Update 28 June: the MoJ has published an initial assessment  of the reforms in Part 2 LASPO and has invited views from stakeholders by 24 August.

Update - Civil Courts Structure Review: LJ Briggs' Final Report. In July 2016, Lord Justice Briggs published his final report following his review of the structure of the civil courts. The headline recommendation was 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 2017 the Lord Chief Justice and the Master of the Rolls issued a Joint Statement endorsing the report and supporting the recommendations. In the meantime a pilot began in September to trial a procedure that will allow legal representatives to file claims online at the CCMC. In April the pilot moved on to the 'Public Beta' phase. The Courts Bill proposed in the Queen's Speech was expected to reintroduce the provisions enabling the creation of the new online court but the Bill is still awaited and the CPRC has cast some doubt on whether there will be legislation with Coulson J and Birss J indicating at the CPRC open meeting in May that there is no over-arching online court and no indication that legislation will be put in place. However this month Joshua Rozenberg reports the CEO of HMCTS as saying there will be further legislation ‘to underpin the online court’ as soon as parliamentary time allows.   

SRA: thematic review of personal injury sector. In February 2017 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 and in December the SRA published its review which found that firms generally had adequate systems and processes in place, yet also found some issues which could lead to misconduct. At the same time the SRA issued a revised warning notice arising from concerns about how law firms handle personal injury claims, especially when dealing with CMCs. An SRA report (pdf) published in February 2018 on its work following the Insurance Fraud Taskforce report revealed the number of complaints it had received about referral fees and cold calling, and also the scale of law firms' dependence on the personal injury market.

Update - 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 2016. 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 December 2017 the government responded and ruled out a review of legal regulation, although Lord Keen did agree that improvements to the framework can be made through incremental changes. We have also been reporting on the SRA's work in this area: in January 2017 the SRA confirmed that it was preparing rules on publishing price information for consultation in the summer. In September the SRA launched a consultation "Looking to the future: better information, more choice" which includes proposals for law firms to publish information on prices and services for certain types of work, such as conveyancing, wills and personal injury work. It is also considering publishing data collated by firms on the complaints they receive. Controversially the consultation also proposes to allow solicitors to provide non-reserved legal services outside of firms regulated by the SRA. The consultation closed in December and the SRA has responded this month. The plans under which freelance solicitors working outside a regulated firm will not be required to meet minimum levels of insurance cover has already been met with criticism. See also SRA press release which sets out the other measures as well, including the information law firms will be required to publish.

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 in June 2016 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, “it was a policy decision which was ultimately one for the Government". Read more in the CJC media release. We understand from a Practical Law update following a Westminster Policy Forum in October that the government might reconsider DBAs within its forthcoming review of Part 2 of LASPO. In February the Gazette reported on a suggestion that the way DBAs may be introduced into Scotland could demonstrate how their use in England and Wales could be increased. In his valedictory speech in March Lord Justice Jackson summarised the current problems with DBAs saying "There is a pressing need for work here by the MoJ and the Rule Committee."

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 but to date there has been no response. In December 2017, while responding to the CMA Legal Services Market Study, the government confirmed it would not be going ahead with a consultation on regulatory independence as it believes there is scope to make more progress within the existing framework.

Contact

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

You can find all previous editions of Looking Ahead here

 

By Alex Fusco

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