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Looking ahead

October 2018

October began with the Conservative Party Conference, where on Justice issues prisons and rehabilitation policy took centre stage at the expense of access to justice and civil issues; the month ended with news of further cuts to the Ministry of Justice budgets.

The main news in the insurance claims handling arena was the passing of the Civil Liability Bill through the latter stages of the legislative process with relative ease. The Bill now has to go through the Ping Pong stage, which has now been fixed for 20 November, but absent a wider government crisis, it seems likely to receive Royal Assent before the Christmas recess, with the first review of the discount rate under the new rules getting under way in the New Year.

In what was perhaps a surprise discount rate development, the end of last week saw the launch of a consultation from the Jersey government on proposals to introduce a statutory discount rate and the power to award damages by way of PPOs. To date, the discount rate in Jersey has been determined by the courts and there has been no provision for PPOs, a position which has increasingly caused concern for insurers.

On PPOs, the latest ASHE figures were published this month and we provide our annual analysis of the key data relevant to catastrophic injury claims handling.

The European Parliament's consideration of the Commission's proposals to amend the Motor Insurance Directive continues, and in a Committee meeting held this month, it was reassuring to see concerns about the widened scope of the Directive being aired and the Commission being open to further discussion.

The FCA's preparations for taking over claims management regulation next April continue apace, and in other FCA news, a policy statement was published this month with 'near final' rules on widening access to the FOS for small businesses. And today, the FCA has launched a market study into General Insurance Pricing Practices.

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

Forthcoming cases

Update - 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. In a judgment handed down on 10 October, the Supreme Court unanimously allowed the appeal finding that the NHS Trust owed the claimant a duty of care and that the duty had been breached by the provision of misleading information by the receptionist. Read more in our update this month.

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 heard the appeal on 16/17 July 2018. Read more on the Court of Appeal decision in our update from December.

Professional negligence: solicitors. The appeal in Perry v Raleys Solicitors will take place on 27 November. In this professional negligence claim concerning the alleged under-settlement of a vibration white finger claim the issues are: (1) where a solicitor negligently fails to advise a client of a potential claim against a third party, and where that client then brings a claim against the solicitor, seeking damages for the lost opportunity to pursue the former claim: must the client prove, on the balance of probabilities, that the former claim would have been an honest claim? and, (2) in which circumstances should an appellate court interfere with a trial judge’s findings of fact? Read more in this Crown Office Chambers update.

Motor insurance: unnamed defendant. In Cameron v Hussain & LV= the issue is whether a claimant is entitled to bring a claim for damages against an unnamed defendant, if the claimant has been the victim of an unidentified hit-and-run driver, and the car the unidentified driver was driving is covered by an insurance policy, albeit one in the name of someone untraceable. We now have confirmation the appeal will be heard on 28 November.

Motor insurance: "use" of vehicle. The issue in R&S Pilling T/A Phoenix Engineering v UK Insurance Limited is whether on its true construction, a policy of motor insurance extends to liability for damage to the property of third parties because of fire caused by repair work to the car when it is immobilised. We now have confirmation the appeal will be heard on 13 December.

Court of Appeal

Update – Legal professional privilege: internal investigations. Last month we reported on that the judgment in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited had been handed down on 5 September and that the Court of Appeal overturned the High Court decision, holding that the documents are protected by litigation privilege. Earlier this month, the SFO confirmed it will not seek to appeal the decision.

Update - Vicarious liability: connection with employment. Judgment in Bellman v Northampton Recruitment Ltd was handed down on 11 October. The Court of Appeal overturned the previous decision and held that an employer was vicariously liable for an assault committed by its director after a work Christmas party. Read more in our update.

Update – 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 was heard earlier this month and in a judgment handed down last week the Court of Appeal dismissed the claimant's appeal holding there was no duty to warn as alleged.

Construction: pay less notices - “smash and grab” adjudications. An appeal in Grove Developments Ltd v S&T (UK) Ltd was heard on 9 & 10 October. The first instance decision of the TCC in Grove held that an employer could adjudicate on the “true value” of a payment application, even where invalid payment notices have been issued.  The decision marked a departure from previous case law where a paying party’s failure to issue a valid payment notice enabled a contractor to claim the full sum under its payment application. Read more in our update from earlier this year.

Update – Personal injury: expert evidence. At first instance in Wright v Firstgroup Plc (now First Bristol Ltd), Foskett J allowed the claimant's application to adjourn a trial and instruct a fresh accident reconstruction expert, after the claimant's expert had changed his opinion following the joint meeting of experts, and when there was a lack of clarity about the expert's current view. The appeal was due be heard this month, but David Rivers, counsel for the claimant has confirmed that "by the date of the Court of Appeal hearing a new expert had been instructed by the claimant and a new joint statement completed in which all issues were not agreed. The defendant made a substantial six figure offer which was accepted by the claimant shortly before the hearing of that appeal."

Update - Solicitors’ professional negligence: Part 36 costs. A costs appeal in Dreamvar (UK) Ltd v Mishcon de Reya & Anor was due to be heard this month but it did not go ahead as the parties reached agreement beforehand.

New – Professional indemnity insurance: exclusion clauses. At first instance in Crowden v QBE Insurance, the defendant professional indemnity insurer successfully obtained summary judgment against claimants who had brought claims against the insurer direct, under the Third Parties (Rights against Insurers) Act 1930, after receiving negligent investment advice from a now insolvent financial adviser. The insurer successfully argued that the claim was excluded under the policy. The appeal is due to take place on 21 November 2018.  

Limitation: mesothelioma contribution claim. The case of RSA Insurance plc v Assicurazoni Generali Spa concerns the recovery of payments between insurers in a mesothelioma claim. HHJ Rawlings held that the limitation period was two years from the date of settlement, as in a damages contribution claim, as opposed to six years for a debt claim. The appeal is due to take place on 6 or 7 February 2019.

Costs: success fees in low-value PI claims. Litigation Futures reported in July that the Court of Appeal is to consider the legality of what has become the industry model for handling low-value personal injury claims, with firms charging clients a 100% success fee as standard. The court has given permission for a second appeal in Herbert v HH Law which is now due to be heard on 19 or 20 March 2019.

New – Acoustic shock: breach of duty & causation. The defendant has been granted permission to appeal in the case of Goldscheider v Royal Opera House in which the claimant viola player successfully alleged that during a rehearsal of Wagner's Ring Cycle he was exposed to noise levels which created a risk to and resulted in injury to his hearing, namely acoustic shock. The appeal is due to take place on 19 or 20 March 2019.

Jersey Royal Court

Update - Abuse claim: discount rate. News is awaited following a trial which started in June and in which two victims of child abuse are claiming £238 million from the Minister for Health & Social Services in Jersey. The claims involve consideration of the law on discount rates, with the defendants seeking to argue that the principles in Wells v Wells and Helmot v Simon should no longer be followed. Read more in the following updates from Crown Office Chambers X Children v Minister for Health & Social Services and X Children v Minister for Health & Social Services #2. In the meantime, the States Assembly has in the last week launched a consultation on a new legislative approach to setting the discount rate in Jersey, with the lodging of the Draft Damages (Jersey) Law. Read more in our update The Discount Rate: The Channel Islands lead again

Consultations

The following consultations are currently open:

New – Jersey Discount rate: Draft Damages (Jersey) Law. On 26 October the States Assembly of Jersey launched a consultation on a new legislative approach to setting the discount rate in Jersey, with the lodging of the Draft Damages (Jersey) Law. The draft Law addresses two issues relating to awards of damages for those who suffer long-term injuries and require ongoing care. It introduces a statutory discount rate for lump sum damages awards and it provides a statutory power to award damages by way of PPOs. The deadline for comments is 9 November and the law is due to be debated on 4 December. Read more in Graham Dickinson's update The Discount Rate: The Channel Islands lead again

Claims management companies: Senior Managers and Certification Regime. Last month, the FCA launched a further consultation in preparation for them taking over the regulation of CMCs. All firms regulated by the FCA and authorised under the Financial Services and Markets Act 2000, along with individuals performing regulated activities, need to comply with the FCA's rules on professionalism, conduct and governance, known as the Senior Managers and Certification Regime (SM&CR). This consultation sets out the draft rules and guidance for CMCs relating to the SM&CR, and is open until 6 December. Read more in this helpful summary from Legal Futures.

New – Financial Ombudsman Service: SMEs & financial award. Following a consultation earlier this year, the FCA has, this month published its policy statement on extending access to the FOS to SMEs. At the same time it has issued a consultation, open until 21 December. Read more on the detail of both of these in our update this month Widening access to FOS for small businesses: FCA publishes policy statement, 'near final' rules and further consultation on FOS financial award limit

The following consultations await official responses:

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

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. You can read more on the proposal in our June update. Feedback was requested by 24 July 2018 and DWF responded. The proposal is currently proceeding through the European Parliament and this month saw a meeting of the Internal Market and Consumer Protection Committee (IMCO). In an exchange of views on the whole of the Commission proposal, there was clearly some concern about the amendments to the scope of the Directive, with MEP Daniel Dalton highlighting the issues around e-bikes, motorsports events, and accidents on public/private land. A representative from the Commission explained the thinking behind the proposal but did appear to leave the door open for a discussion around public/private land. The forthcoming timetable is for the Committee's draft report to be sent to translation by 26 October, consideration of the report by 21 November, deadline for amendments by 27 November and a vote in IMCO by 29 January 2019.

Also last month we highlighted the case of Lewis v Tindale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), in which Soole J determined that the MIB is an emanation of the state so that the MID has direct effect. Read more on this in our update this month The Vnuk legacy: claims against the MIB for accidents on private land

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. Having initially incorporated its proposed whiplash reforms within the Prisons and Courts Bill, after the dissolution of parliament the whiplash provisions were reintroduced within this year's Civil Liability Bill which is currently progressing through parliament. 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 July, Part 2 of the consultation response received a mention in the government's response to the Justice Committee's small claims track inquiry with the government confirming that it "is currently working closely with stakeholders including from the insurance industry to take forward the IFT’s recommendations. Detail will be included in Part Two of the response to the whiplash consultation, which will be published shortly."

Recap - 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. Throughout the year there have been a number of comments from ministers to the effect that the government is considering the report and will announce the next steps in due course. The latest comment in almost identical terms to previous ones came from Justice Minister Lucy Frazer at the Civil Justice Council LASPO seminar on 29 June. In the absence of any meaningful developments recently, Litigation Futures has this month done a handy recap of the Jackson reforms and the present position. 

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. The outcome of the work done on package holiday claims was the introduction of the new Pre-action protocol for resolution of package travel claims along with fixed costs which came into force in May. In July, the government published a summary of the consultation responses and details of the way forward confirming for the first time that fixed costs would not be extended beyond gastric illness claims. And as we reported in June, attention has now turned to the review of low value claims more generally. A cross industry working party met for the first time in 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 was then due to report on those areas to the CJC in the summer and we await further developments.

Credit hire: model directions. In June 2017, 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.

Default County Court Judgments. At the end of December 2017 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 2018.

Update - 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. In July, the issue received a mention in the government's response to the Justice Committee's small claims track report. The Committee had expressed concern regarding paid McKenzie friends and recommended that "the senior judiciary seek to conclude its examination of this issue as soon as possible." In response the government has confirmed that it "will work with the judiciary to make sure that their concerns are addressed." During the Civil Liability Bill debate this month, Bob Neill of the Justice Committee took the opportunity to press for a ban on paid McKenzie friends and received support from a number of MPs. In response Justice Minister Rory Stewart said "through consultation with the judiciary, we are looking at the issue of paid McKenzie friends. We are waiting for the judiciary to report back so that we can take action on that issue."

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 following which some responses started to emerge, including criticism from both the Law Society and the ABI. July saw two reports on the issue from the Gazette: one on the potential for volatility to result and one from the SRA's Crispin Passmore explaining the reasons behind the proposed changes.

Solicitors Disciplinary Proceedings: standard of proof. In July the Solicitors Disciplinary Tribunal launched a consultation on the making of procedural rules in relation to first instance applications to the Tribunal. The current standard of proof used in disciplinary proceedings before the Tribunal is the criminal standard. The Tribunal is inviting views on whether instead it should apply the civil standard in line with other professional regulators. Whilst the move is clearly being considered for a number of reasons, it could be seen as complimenting the Insurance Fraud Taskforce's recommendation that the SRA toughen its stance on dishonest solicitors. The consultation closed on 8 October and last month we reported on the SRA's response which the Gazette reviewed. This month has seen reports on the responses from the Law Society and the Legal Services Consumer Panel along with news that the Bar Standards Board has received the green light to adopt the civil standard from next year.

FCA: regulation of claims management companies. In anticipation of the transfer of regulation of CMCs to the FCA on 1 April 2019, the FCA 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 were requested by 3 August and DWF responded. A policy statement is due in Q4 2018.

Claims management companies: recovering the costs of regulation. On 20 August, the FCA opened a consultation on proposals for recovering the costs of regulating claims management companies when it takes over their regulation next year. The FCA estimates that the cost of setting up and delivering the claims management regulatory regime will cost £16.8m which will have to be recovered from CMCs. The consultation closed on 22 October and an FCA policy statement is due in December 2018. Read more on the consultation in the Gazette and on the consultation response from marketing collective First4Lawyers in Legal Futures.

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 closed on 21 August. Read more in the press release from the Department for Digital, Culture, Media & Sport.

LASPO Part 2: post-implementation review. In June, the MoJ published an initial assessment of the Part 2 LASPO reforms for its post-implementation review. The Civil Justice Council then held a seminar, where a number of speakers including Sir Rupert Jackson, Prof Paul Fenn, Prof Rachael Mulheron and claimant and defendant solicitors spoke about the key impacts of Part 2 of LASPO. The discussions covered a range of familiar issues, including: CFAs, costs budgeting, QOCS, the referral fee ban, and Part 36 consequences. High on the agenda (and now out of Looking Ahead's long grass) was the issue of DBAs which are not being effectively utilised; in part due to technical deficiencies in the regulations and in part due to the government's reluctance to permit hybrid DBAs. The mesothelioma exemption on recoverability of additional liabilities also received a mention (albeit the PIR is not directly considering mesothelioma claims or the exemption), as did the potential extension of the QOCS regime to police and/or professional negligence claims (bringing this issue out of the long grass as well). The CJC published a summary of the day's discussions and different aspects of the day were also covered by the Gazette, Litigation Futures and Legal Futures. The MoJ invited views and evidence by 24 August and DWF responded. Since then, the CJC has published its response and the Gazette reports on the response from FOIL. Last month APIL (pdf) and the Law Society published their responses, both helpfully summarised by Litigation Futures.

Legislation

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 pre-med offers 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. Although there was always broad consensus on the discount rate, the whiplash provisions were expected to receive a bumpier ride. Whilst it is true that there has been vocal opposition at each of the debates, particularly in relation to the introduction of a tariff but also in relation to the proposed small claims track increase, the Bill has ultimately progressed with relative ease. This month Simon Denyer reports on the Bill's latter stages in the House of Commons and the next steps. The Lords' consideration of amendments (Ping Pong) has now been fixed for 20 November. You can continue to follow the Bill's progress on the Bill's webpage.

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". In May, 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 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, in late May, 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 Bill had its report stage on 16 October and Litigation Futures reports on the amendments introduced at that stage. The HoL third reading is due to take place on 13 November.

Riot Compensation (Amendment) Regulations 2018. Last month we reported on the Regulations which had been published with the purpose of providing corrections to the 2017 Regulations to ensure clarity of entitlement to compensation and the procedure. Further details can be found in the explanatory note and memorandum and the Regulations came into force on 1 October.

Update - Third Parties (Rights against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018. At the end of June draft regulations were published aimed at addressing one of insurers' main concerns about the 2010 Act, surrounding the ability of an insurer to seek a contribution from other tortfeasors. DWF's Derek Adamson explained the issue in this New Law Journal article from earlier this year. The regulations "will give an insurer of a company that has been dissolved for more than six years a right to restore the company to the register of companies in order to take legal proceedings to recover contributions from other persons who are also liable for a personal injury in respect of which the insurer has paid out damages." The draft regulations are subject to the affirmative procedure which means they need to be approved by Parliament. This month, the Regulations have completed the approval process and we await confirmation that the Statutory Instrument has been made.

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

Update - 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 and set out a replacement scheme called the Liberty Protection Safeguards. 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 set out its provisional views on the individual proposals. In June, the Human Rights Committee published its report recommending that legislation implementing the Law Commission's Liberty Protection Safeguards is brought forward as soon as possible. It also recommended that parliament should provide a statutory definition of what constitutes a deprivation of liberty. Then in July, the government published the Mental Capacity (Amendment) Bill which this month completed the HoL Committee Stage. You can follow the Bill's progress here, and there is a helpful round-up of recent developments on the parliament website, including a link to a Lords Library Briefing Note which covers the background to the Bill, the differences between the Bill and the Commission's recommendations, and the Committee report. There is also a useful update from counsel, Alex Ruck Keene, on his Mental Capacity Law and Policy blog.

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. The extended deadline for comments is 31 October. Read more in the Law Commission press release.

Also on the horizon...

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. In May the Committee published its report highlighting significant access to justice concerns. Simon Denyer analysed the findings in this update.  In July the government responded to the Justice Committee report and in doing so announced a delay in the implementation of the whiplash and small claims proposals until April 2020. Importantly though, the government does not accept the Committee's recommendation to limit any increase in the small claims track limit to £1,500. Read more in Nigel Teasdale's update. In response, the Chair of the Committee wrote to the Lord Chancellor seeking further information on several points, including an explanation on how "the proposed increase to £5,000 for RTA PI claims is proportionate". Last month the Committee published the Lord Chancellor's response (pdf) (and summarised in Legal Futures) explaining the government's belief that setting the limit at a lower level than £5,000 "will fuel claims displacement".  There is also a helpful House of Commons Library briefing note on small claims for personal injuries including whiplash. The issue is or course intertwined with the Civil Liability Bill – which we discuss further above - albeit not forming part of it. This month at the MASS annual conference, Dominic Clayden, chief executive of the Motor Insurers’ Bureau, confirmed that the new system designed for litigants in person to run low-value claims is on course for April 2020.

Insurance Fraud. We have for some time been waiting for the government's response to Part 2 of its whiplash consultation which sought views on certain recommendations made by the Insurance Fraud Taskforce in its final report in January 2016. The latest news on that came in the government's response in July to the Justice Committee's small claims track inquiry, confirming that it "is currently working closely with stakeholders including from the insurance industry to take forward the IFT’s recommendations. Detail will be included in Part Two of the response to the whiplash consultation, which will be published shortly." Also in July, the Solicitors' Disciplinary Tribunal launched a consultation on whether to lower the standard of proof in disciplinary proceedings to the civil standard, a move which could be seen as a response to the IFT's recommendation to toughen action against dishonest solicitors. In August the ABI published details of its most comprehensive analysis yet into insurance fraud with the headline One scam every minute – ABI reveals the true extent of insurance fraud in the UK, and last month held its annual fraud conference focusing on tackling fraud through collaboration and innovation.

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. In August 2017 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.Last month MedCo provided an update on its audit programme, details of which can be found on the MedCo homepage, and Litigation Futures reported on news from its PI Futures conference that "the number of MROs on the MedCo system has shrunk by a third in only eight months."  

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 2018 which received Royal Assent earlier this year and HM Treasury has recently consulted on the accompanying draft regulations. A consultation which closed in August sought 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. In July, the Claims Management Regulator published its 2017/18 annual report from which Legal Futures highlighted a move from holiday sickness claims into housing disrepair cases. August saw the deadline for the FCA's consultation on proposals for regulating CMCs and the start of new consultation on proposals for recovering the costs of regulation. September brought another FCA consultation, on proposals for applying their Senior Managers and Certification Regime (SM&CR) to claims management companies (CMCs); and the ban on cold calling in the absence of consent came into force. This month The Financial Guidance and Claims Act 2018 (Commencement No. 4) Regulations 2018 have been published. These Regulations bring into force the parts of the Financial Guidance and Claims Act 2018 which concern the transfer of the regulation of claims management services to the FCA.

Civil procedure: disclosure. Last November the Judiciary set out detailed proposals for a mandatory disclosure pilot scheme to run for two years in the Business and Property Courts. A Disclosure Working Group had been 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." After a slight delay in the rules being approved, on 31 July, it was announced that the scheme had been approved and the pilot will commence on 1 January 2019. Read more on the Judiciary website and in the Gazette.

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.

Civil Courts Structure Review: LJ Briggs' Final ReportIn 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. In May the CPRC cast some doubt on whether there will be legislation with Coulson LJ and Birss J indicating that there is no over-arching online court and no indication that legislation will be put in place. However in June, the CEO of HMCTS was reported as saying there will be further legislation ‘to underpin the online court’ as soon as parliamentary time allows. And in July, Joshua Rozenberg published his book (which is available as a free download) on the online court planned for England and Wales. In the meantime, HMCTS has a number of ongoing events designed to raise awareness of and seek input on the reform plan.

Update - SRA activityIn July, we reported that personal injury claims feature in the SRA's risk outlook for 2018/19 as part of a new priority risk: managing claims. In the accompanying press release Paul Philip, SRA Chief Executive says, "... For the first time, we are highlighting how claims are managed as a key risk. This follows concerns over issues such as firms failing to properly check on the validity of personal injury claims…" We have also been following the SRA's work on transparency, including proposals to require law firms to publish pricing information and complaints data. In August the Legal Services Board (LSB) approved the new transparency rules, although having initially been part of the proposals, personal injury claims no longer appear to be covered by the new rules. The SRA is also sticking with plans to allow solicitors to practise from unregulated firms and enable freelance solicitors to do more, although last month it came under further fire for those plans. It also issued a new consultation in August on proposed rule changes on the reporting of potential misconduct, and updated its warning notice in relation to holiday sickness claims (read more in the Gazette). This month the SRA has published its rules for dealing with the European Insurance Distribution Directive, its price transparency guidance and a statement on the implications of a 'no deal' Brexit for the legal sector.

In the long grass?

Issues where there has been no activity for some time:

We have kicked QOCS and DBAs out of the long grass for now as it appears they may both be looked at as part of the MoJ's post-implementation review of Part 2 of LASPO discussed further above.

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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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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