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Schiltz: insurers have been quick to change

Legal protection insurers are best placed to meet the needs of this new generation of internet savvy, self-directed customers, according to the new president of RIAD – the International Association of Legal Protection Insurance.

Marie-Emmanuelle Schiltz, told the 22nd Congress of RIAD in Prague earlier this month that empowered customers with high expectations are set to be a game-changer for the legal services market.

She said that, unlike the rest of the legal sector, legal protection insurers have already been quick to change and develop lean management processes. She said: “Innovative insurers have been standardising and packaging their service offerings to deliver more value for clients. And the legal protection insurance industry’s smart legal products are also helping to improve access to justice.”

Renowned legal IT guru Professor Richard Susskind was guest speaker at the Congress, and told the 160 delegates that the global economic downturn is accelerating customers’ desire “to secure more legal services at less cost,” and increasing recognition that many current working practices are, “unjustifiably inefficient”.

He added: “If legal protection insurers have an appetite to diversify, I can indeed see them having a legal process management capability.”

Bas van Harten, chief legal operations director at DAS Netherlands, told the event that in the more demanding and price-conscious climate of today, legal protection insurers have been quick to bring a new generation of legal services products to the marketplace. “Our innovations are customer-led; when our customers flag up gaps in the market, we develop flexible and transparent solutions,” he said.

He said legal services customers now demand greater efficiency and shorter response times, as well as more control over the management of their case.

“That’s why we have developed new prepaid products as a logical next step alongside existing insurance solutions. For such prepaid products we have defined the number of events and stages – our customers really appreciate this transparency as well as knowing the costs associated with each stage of the legal process upfront.

“We also offer a growing range of ‘one-stop-shop’ solutions. These include basic notary products, a fiscal advisory service and even a fixed-fee divorce mediation product.

“Our expertise in standardising the legal process means we can offer value for money propositions. For certain legal services, insurers’ in-house lawyers can be 50% less costly than engaging a traditional law firm, while delivering at least the same or even higher quality.”

Ms Schiltz is the first woman to be elected as RIAD president, taking over from DAS UK chief Paul Asplin. She is chief executive officer of Juridica, a French legal protection insurance company.


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O’Shaughnessy: legitimate concerns about access to justice

The government has today finally published its plans to introduce fixed recoverable costs in clinical negligence cases, and in a victory for the claimant industry proposes to limit them to cases worth up to £25,000.

The Department of Health (DoH) estimated that this would “release a saving of approximately £45m per annum by 2020/21”.

Litigation Futures first reported last October that this was the direction in which the DoH was moving, having originally suggested in summer 2015 that the limit was going to be cases worth at least £100,000 and maybe as much as £250,000.

“We have taken into account legitimate concerns about access to justice”, wrote health minister Lord O’Shaughnessy in the introduction to the consultation.

As well as lobbying by the Law Society, Association of Personal Injury Lawyers, Society of Clinical Injury Lawyers and Action against Medical Accidents, the DoH was influenced by an evaluation it commissioned from well-known academic Professor Paul Fenn.

Professor Fenn’s analyses of legal costs have underpinned the introduction of fixed costs in the civil justice system over the past 15 years, and he told the DoH: “The arguments put forward for extending the scope of the fixed cost tables beyond £25,000 in value are not persuasive.”

The DoH said awards of between £1,000 and £25,000 – around 60% of all claims settled by the NHS – encompassed the greatest disproportionality between claimant costs and damages, with claimant recoverable costs 220% of the damages awarded.

“Our proposition is that the disproportionality and the time taken to settle are not in the best interests of either the patient or the taxpayer,” the consultation said.

The DoH has not put forward actual figures but is seeking views on the methodology that will sit behind them. There are four options, three based on an estimation of legal time required under a streamlined process, and the other based on current market costs.

The Mail on Sunday, which claimed the reforms as a ‘victory’ for its campaigning, yesterday quoted health secretary Jeremy Hunt as saying: “What we often see in lower cost claims is a deeply unfair system where unscrupulous law firms cream off excessive legal costs that dwarf the actual damages recovered.

“We believe this creates an adversarial culture of litigation, which is inflating insurance premiums and drawing away resource from the NHS.”

The paper also cited a “government source” saying that Mr Hunt wanted the cap to come into force by the autumn.

The consultation also proposes:

  • A standard additional fee for experts of up to £1,200 for defendants and claimants alike for claims that settle.
  • An exemption to fixed costs for claims where the number of experts reasonably required by both sides on issues of breach and causation exceeds a total of two per party;
  • An independent single joint expert should be appointed to provide an opinion on breach of duty and causation (in broad terms) at an early stage;
  • Trial court costs will be paid in addition to the final stage fixed costs (a trial occurring when an advocate addresses the court in a contested final hearing). Recoverable trial costs will be in accordance with table 9 of CPR 45.38;
  • The fixed costs scheme would include counsel costs, save for the trial advocacy fee. However, where fees are necessarily incurred for settlement approval because the claimant is a child or protected party, these would be separately recoverable; and
  • A possible exemption from fixed costs for child fatalities arising from clinical negligence.

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Mr Justice Briggs: tasked with reporting by the end of the year

The impact of the Jackson reforms and cuts in legal aid on business in the Chancery Division are to be assessed after the Chancellor of the High Court last week announced a review.

Sir Terence Etherton has asked Mr Justice Briggs to lead the review of the practice and procedure of the Chancery Division, both in and outside London, with a brief to make recommendations for change.

He will assisted by Mr Justice Newey and an experienced advisory panel.

The timetable is to produce a provisional report by end of July, followed by a three-month consultation, with the final report published by the end of the year.

Consultees are currently being contacted with a questionnaire and are being invited to provide initial views by the end of March.

The review’s terms of reference are:

  • To review the current practices and procedures for the conduct of business in the Chancery Division of the High Court, taking into account the changes about to be implemented following the Jackson report;
  • To consider whether the case management of business in the Chancery Division best serves the needs of court users and, if not, to make proposals for change;
  • To consider whether the current basis for the allocation of judicial resources for business in the Chancery Division makes best use of the available skills and experience of those exercising judicial functions there and, if not, to make proposals for change; and
  • To consider the implications for business in the Chancery Division of the imminent reduction in the availability of legal aid, and to make recommendations designed to secure the best access to justice for self-represented litigants.

For a copy of the court user questionnaire, click here.



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First signs that Bristol based legal services insurer ARAG is implementing its  expansion plan are evident from the six new recruits joining Head Office in quick succession. Earlier this year the company acquired a further 60% surface area within the Georgian-fronted office complex, then renovated and upgraded the entire space.

“This is all about forward planning” comments ARAG managing director Tony Buss. “Our continuing success in attracting demanding clients with our tailor-made policy offerings means we have a continuing need to anticipate demand levels. This way we ensure we maintain our award winning service levels across all areas of our legal services and insurance businesses. We are therefore opening up new roles across the company”.

With substantial pre-LASPOA* after the event cover being booked in the first quarter of last year it is the ATE Claims Management Unit that sees two new faces with Assistants Stephanie Paul and Freddie  Pickles. Meanwhile, Judith Harper joins as Compliance Advisor after more than 30 years’ insurance industry experience and Michelle Camfield becomes HR, Facilities and Project Assistant putting her law degree and HR experience to good use.

On the before the event side Corrie Gilbert trades five years’ previous experience in a direct insurer’s complaints department for a support role with ARAG’s BTE underwriters. Concluding the line-up is Rachael Wornes, who brings 16 years’  legal expenses insurance experience into play as she takes responsibility for Group marketing activity.

“We are now in our eighth full trading year and looking ahead a similar length of time” adds Mr Buss. “It’s good to know that more high-calibre recruits are joining the team at this crucial point in ARAG’s development”.

* (Legal Aid Sentencing and Punishment of Offenders Act)

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Tonks: proposals unworkable and unfair

The low costs risk for claimants making mesothelioma claims means they should not longer benefit from an exemption from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a leading defendant law firm has argued.

At the same time the Association of Personal Injury Lawyers (APIL) has described the government’s proposals for the reform of mesothelioma claims as a “missed opportunity”.

The consultation, which closed this week, proposed a new mesothelioma pre-action protocol, an electronic claims gateway and fixed costs.

City law firm Kennedys argued that the special legal status afford to mesothelioma victims – which makes the compensation process straight forward and speedy – nullifies the need for their claims to be exempt from LASPO reforms.

It said that although compensation should be paid to “a victim of this terrible disease as soon as possible after diagnosis”, this does not translate into a complex category of personal injury claims.

“Mesothelioma claims are, quite properly, afforded special treatment to ensure prompt settlement and therefore carry lower costs risks than other types of personal injury claim, especially as the only issue at stake in most cases is the level of damages,” the firm said.

“This makes them well suited to a fixed recoverable costs regime with no recoverable success fee or after-the-event insurance premium, in line with the Jackson reforms already in force in almost every other class of litigation.”

Kennedys identified a widespread failure to comply with the current disease pre-action protocol. The firm argued that while it is right to expedite cases where the victim is still alive, an estate claim should be no different from the normal litigation process and any other fatal accidents claim.  Therefore, there should be a costs sanction on estate claimants who litigate without complying with the proposed new mesothelioma pre-action protocol.

The firm suggested that this new protocol and the proposed secure claims gateway are unlikely to make a substantial difference to the existing practice of managing mesothelioma claims.

APIL said the government proposals were “unworkable and unfair”, and influenced by “the insurance industry’s relentless agenda for cutting its own costs”.

Former president Karl Tonks explained: “What dying mesothelioma victims need from the legal process is a protocol which provides them with automatic interim payments; early admissions of liability from culpable defendants and easier access to medical, work and pensions records. Such changes would speed up the conduct of these cases and cut costs in the process.

“The proposal in the consultation to introduce a new protocol to settle more cases out of court sounds like a great idea in principle. But taking cases to the specialist mesothelioma court is usually the only way to persuade defendants and their insurers to admit liability for causing the disease, and to get the claim settled quickly.

“It is also often the only way to obtain early interim payments to help provide some comfort for the victim in his final months, without having to wait for the case to end.”

Mr Tonks said defendants were too slow to admit liability. “By ignoring the way defendants and insurers routinely behave and seeking to impose a new, more rigid system which just plays into their hands, the proposals condemn sick and dying victims to spend their last months wrangling with the very people who have caused their illnesses. Where is the fairness in that?”

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Burcher Jennings

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The Burcher Jennings solution brings to an end poor realisation rates, problems with cash flow, constantly reducing margins and time lost to dealing with cost complaints. Instead, firms can be confident their costs and pricing policy matches their potential as well as new costs budgeting and assessment requirements.

Lawyers typically do not like talking about money and this compounds a lack of confidence in how to price their services. Many firms do not possess the know-how to offer pricing and payment choices and often simply don’t have the negotiation skills to deal with the aggressive approach to modern procurement.

Burcher Jennings help overcome these challenges with a comprehensive portfolio of unique services, all designed to improve the financial performance of legal firms.

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Jersey: Action would be brought were CPA is incorporated

The London office of an American law firm, together with a Jersey firm, have secured litigation finance to investigate and possibly sue CPA Global over alleged systematic and widespread overcharging of clients for patent renewal services.

Kobre & Kim and Baker & Partners have agreed funding from Bentham IMF for the potential action against one of the world’s largest patent renewal businesses, which they said reportedly processes more than two million renewals a year.

The firms are also working with the patent renewals consulting business Patent Annuity Costs, headed by well-known intellectual property solicitor Peter Rouse.

They are investigating claims that CPA Global breached standard service contracts with what may be tens of thousands of clients through concealed mark-ups, in at least one case estimated to exceed 90%.

Legal proceedings would be commenced in Jersey, where CPA Global is incorporated, on behalf of CPA Global clients whose agreements select Jersey as the forum for any disputes.

The case is being led by James Corbett QC, a lawyer in Kobre & Kim’s London office, who said: “Based on the investigation so far, the overcharging could be shocking. Based on models, the aggregate over-charges could total hundreds of millions of dollars over a 10-year claim period.”

Baker & Partners’ senior partner Stephen Baker added: “We engaged with Bentham IMF to help clients enforce their rights on a risk-free basis without the need to secure representation.

“Given the international nature of CPA Global’s business, we have partnered with a global firm to work with our experienced Jersey team to seek effective redress for claimants from around the world.”

In a statement, CPA Global said: “CPA Global categorically and emphatically denies any wrongdoing in our business. The fees for our service are defined in our agreements with our customers, and we adhere to those agreements fully.

“CPA Global prides itself on its industry-leading ethical standards – we were recently one of the first companies globally to achieve the ISO 37001 standard for anti-bribery management systems.

“We consider any speculation about future litigation that might or might not take place to be a deliberate attempt to tarnish our good business reputation and, as we always have, will continue to vigorously defend ourselves against any such vexatious speculation.”

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Eclipse200Goldsmith Williams Solicitors – winner of the ‘Highly Commended Legal Partner’ in the Bridging and Commercial Awards – has utilised Eclipse’s Proclaim Practice Management software for over a decade. The firm now employs over 150 staff and offers expert legal advice in Conveyancing, Personal Injury, Probate and Finance.

“Proclaim stood out to us as being both resilient and incredibly flexible. A decade later, the constant upgrades and the inclusive toolkits mean we can still rapidly adapt to the legal sector and tailor the software in line with our development. In short, Proclaim is utterly vital to us as a complete business tool.”
Eddie Goldsmith, founding partner at Goldsmith Williams Solicitors

Goldsmith Williams was experiencing rapid growth within its services and required a robust and adaptable IT solution that would scale up in line with ambitious plans.

In 2002, the firm chose to implement a Proclaim Practice Management Software solution. The flexibility of the system allowed Goldsmith Williams to tailor the solution in line with business needs and provided a fluid and reactive process that guaranteed cost-effectiveness.

In addition, FileView was implemented which allowed the firm’s clients access to case status and provided real-time, secure data. FileView enabled Goldsmith Williams to offer around the clock support to clients, without increasing staff numbers or hours.

Furthermore, Proclaim’s import/export routines are utilised extensively by the firm to integrate with other Proclaim users so case data can be instantaneously shared between Goldsmith Williams and its partners, creating and cementing strong relationships within the market

As an Eclipse client for over 10 years, Goldsmith Williams has witnessed Proclaim’s ability to evolve. The constant upgrades of the system have allowed for growth and development alongside the practice and its requirements. Today, Goldsmith Williams is one of the UK’s leading national law firms. The firm has the ability to rapidly adapt to any client needs, changes in legislation and as yet unknown requirements to the legal sector, thanks to Proclaim’s inherent flexibility.

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Lee Baty, engineering manager

Laird Experts are delighted to announce that our engineering manager, Lee Baty, has been shortlisted at the IMI Oustanding Achievers Awards 2014.  Lee has been shortlisted for the ‘outstanding management professional’ award and was selected from a very high standard of applicants.

The awards ceremony takes place on 23rd October at the Heritage Motor Centre in Gaydon and will be attended by HRH Prince Michael of Kent. The IMI is the professional association for individuals working in retail motor industry and the authoritative voice of the sector. IMI are also the governing body for Professional Register, IMI Accreditations (ATA) and the best source of automotive careers information, standards and qualifications.

Lee joined Laird in April 2013 and quickly took over as engineering manager.  He manages all our field and desktop engineers and is a real asset to the company.  We are very proud to have him as part of our Laird team.


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Litigation Funding has become a huge access to justice within the UK in a short space of time. The litigation funding industry has increased to allow those without the budget to proceed with action.

Sparkle Capital Limited is one of the market leading funders within the United Kingdom providing a simple and effective procedure for commercial Solicitors to further assist their clients. Choosing to ignore Litigation Funding could be seen as potential professional negligence if your client could have benefited in their case progression.

Acasta Europe Limited has entered into a partnership with Sparkle Capital to provide ATE Insurance and Litigation Funding on an exclusive basis with one of the best leading models and pricing matrix of Litigation protection.

Acasta Europe will be hosting an event with the Leeds Law Society to further increase Solicitor professional development with a course to cover:

Litigation Funding

Adverse Costs

Which cases qualify

Regulatory matters


Case funding planning

How to sell to clients


Thursday 5th October 2017, 5:30pm – 7pm
Drinks and refreshments will be included at the beginning of the event.


St Phillips Chambers
41 Park Square, Leeds LS1 2NP

Members of the Leeds Law Society: from FREE | Non-Members: from £10.00

To find out more or to book a place please click here.

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Laird are delighted to announce a partnership with local rehabilitation company Accident Rehab. The collaboration combines the highly efficient Expert Witness providers with the vast skills of one of the most innovative rehabilitation managers.

Laird’s director, Nik Ellis said, “We’re delighted to be working alongside Helen and her team and have a clear vision of how we can bring our systems to Accident Rehab to make a genuine positive difference to the customer journey they provide. Rehabilitation and case management creates a massive amount of admin which would be better served by automation leaving the medical team to bring their talents to benefit the client. We look forward to seeing the development of AR over the coming months.”

Accident Rehab’s director, Helen Spillards said, “We can utilise Laird’s automation to improve our efficiency by applying it to a multitude of administration tasks, leaving our medical team to use their prime skills rather than be swamped with admin. This allows us to be exceptional and our processes seamless, quick and efficient. The benefits to our clients in speed of triage & effective rehabilitation will speak for themselves. We’re very excited about further exciting developments, including an innovative triage assessment system, direct data transfer & case tracking.

Over recent years Laird have expanded beyond their traditional automotive arena providing expert witness services such as injury photography, locus reports, translation & interpretation so this is a natural step in their evolution.

For more information on Laird or any of their services, please contact Pippa Saunders on 0151 342 0670 or

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Eclipse2014 200x200Gregory Abrams Davidson is implementing the Proclaim Practice Management Software Solution from Eclipse Legal Systems, the Law Society’s endorsed provider.

Based in Liverpool with offices in London, Gregory Abrams Davidson is an established law firm with a client-base comprised of corporate, public sector and private clients. The firm prides itself on its philosophy of striving for professional excellence and maintaining its stellar reputation.

In a six-figure deal, the Proclaim Practice Management Software system has been rolled out to 80 staff, across all work areas including clinical negligence, conveyancing, matrimonial, probate and personal injury. Proclaim provides all fee earners with a centralised and consistent approach to matter management – from inception right through to completion. Risk is effectively managed at both departmental and firm-wide levels, with users benefiting from a host of tools to manage and streamline the client ‘journey’.

Eclipse has also conducted full data migration from the incumbent system, allowing the integrated Proclaim practice accounting and financial management toolset to be implemented, boosting efficiency and providing detailed analysis of the firm’s operations.

Gregory Abrams, senior partner at Gregory Abrams Davidson, comments:

“We pride ourselves on striving for excellence and providing first class service for our clients. In the ever-changing legal sector, it is crucial that we implement a software system which will enable us to streamline our process to ensure administrative overheads are removed and our fee earners have more time to spend delivering expert advice to our clients. Proclaim was the clear market-leader for this.”

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Lodder: a contingent legal aid fund can probably help access to justice

A contingent legal aid fund (CLAF) has merit but its viability cannot be assessed until the Jackson reforms settle down, a Bar Council-commissioned report has concluded.

Consultants Europe Economics, backed by the Bar Council, called on the government to back the concept of a CLAF, a private fund which would back cases in return for a portion of the damages and reinvest the money in other cases.

A Bar Council working party – under the chairmanship of Guy Mansfield QC of 1 Crown Office Row – has been investigating the viability of a CLAF as another potential source of funding for civil litigation.

The economists – who cautioned that there is insufficient data in the public domain on which to base firm findings – said it could be that conditional fee agreements (CFAs) are sufficiently profitable “for solicitors to reduce their margins while retaining volume” in a post-Jackson world.

“It is too early to say how the reforms will work through the ISC CISSP dumps  CFA regime. Some clients may accept that they will have to pay success fees and insurance premia, while solicitors and insurance companies may cut their charges in order to retain case volume…

“We cannot say definitely that a CLAF or CLAFs will emerge, nor when. The most we can say is that the CFA reforms make it more likely that, at some stage, this will happen.”

The report sa

id “there is likely to be a potential market for CLAFs”, with the numbers of cases that might be suitable for CLAF funding running into the “hundreds per annum or possibly the low thousands”.

These might initially be small, non-personal injury cases which are not attractive to claimants and/or solicitors under CFAs after the Jackson reforms, it said, although it may be that data will show that clinical negligence cases could be suitable for CLAF funding too. There might be little to choose between CFA and CLAF funding in personal injury.

Europe Economics was confident that, with “a convincing business plan”, a small CLAF should not have difficulty in raising initial funding, whether as a commercial enterprise or as a charitable/not-for-profit entity.

The report said it would help voluntary bodies to come forward on a not-for-profit basis if they received government confirmation that their CLAFs would not face adverse costs orders or at least should benefit from qualified one-way costs shifting; and that no arguments based on the doctrine of maintenance and champerty could be raised by a client who sought not to pay the due share of damages, or a losing defendant seeking to avoid an adverse costs order.

Bar Council chairman Peter Lodder QC said: “Effective access to justice is at the heart of a free democracy: it is critical to the political and economic health of this country. Faced with continuing legal aid cuts, we cannot turn back the clock to the days when only the very wealthy could afford to litigate to obtain redress for harm caused by others’ wrongdoings; a contingent legal aid fund can probably help.

“We invite the government to take this report seriously, support the concept and provide necessary encouragement for its promoters.”


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Trucks: compensation of £6,000 per vehicle sought

Third-party litigation funder Therium Capital Management is backing a £4bn opt-in collection action being brought by the Road Haulage Association (RHA) against truck manufacturers found guilty of illegal price fixing.

The RHA said it has also secured “the largest tranche of after-the-event insurance that’s ever been underwritten”, although it has not revealed the size or provider.

Last July, the European Commission fined MAN, Volvo Group (which includes Volvo Trucks and Renault Truck), Mercedes-Benz parent company Daimler, Iveco and DAF nearly €3bn (£2.6bn) for price fixing and other cartel activities between 1997 and 2011.

The RHA action before the Competition Appeal Tribunal will seek compensation for haulage and logistics companies that were bought or leased vehicles at inflated prices.

The association said “early indications” were that compensation could be in the region of £6,000 per truck and that 650,000 new trucks were sold during the 14-year period – this would be £3.9bn in total.

Therium will be paid either three times (or less, if the case settles early) of what it has cost to bring the claim, or a percentage of the money that the group wins, if that is more than the first option plus the return to the funder of the funder’s outlay.

Potential claimants have been told: “The percentage starts at 30% and reduces to 5% at higher overall compensation levels. There is also a third reduction in the funder’s fee if the case settles early.

“Based on conservative estimates of the level of damages and the number of trucks that will form part of the RHA’s claim, you should receive between 91% and 95% of any award or settlement. If the case settles early, you would receive an even higher portion of your award or settlement. To some extent, the RHA’s ability to deliver returns at this level will depend on the ultimate size of the claimant group.”

RHA chief executive Richard Burnett said: “UK truck owners affected by the truck cartel have potentially paid too much for their lorries over a 14-year period and we’re determined to get a fair deal for them.

“This is a chance to get their compensation with no risk to their business or finances.”

Specialist transport law firm Backhouse Jones is running the case, along with Exchange Chambers and Brick Court Chambers.

The first stage will be to ask the tribunal to authorise the RHA to act as industry representative and to set out the basis on which operators can opt into the claim. The first hearing is expected to be later this year.

Although the RHA is bringing the action, non-RHA members are able to join.

We reported earlier this month that the first opt-out collective action had been withdrawn due to insufficient damages.

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Lisa Abrahams and Peter Collins

Bristol-based legal expenses insurer ARAG is continuing its expansion programme with recruitment across the board, having just announced record trading and profits and the expectation of more to come.

Of eight new starters, the latest recruits are Peter Collins and Lisa Abrahams who are now working in the South East for the BTE (before-the-event) and ATE (after-the-event) sales teams respectively. Both are well known in the field of legal of legal protection with backgrounds in insurance and the law.

Peter’s career has taken him from the magistrates’ courts to legal protection and a solicitors’ firm, before starting with ARAG as broker account manager. He will concentrate on the Home Counties (apart from the City), where he believes there are significant new business opportunities to develop and maintain profitable scheme business, whilst continuing to provide support and service to all clients.

Lisa also joined ARAG at the start of July. After 13 years in legal expenses, firstly as BTE claims handler then later as business manager and transferring to ATE as a senior underwriter, she has an extensive mix of legal and insurance knowledge to assist in the role. An associate member of the Chartered Institute of Legal Executives, she is developing new relationships with solicitors in the South East and maintaining existing ones.

Refurbishment and expansion of ARAG’s Bristol head office was completed earlier in the year. An increase of over 60% working space was acquired to accommodate the staff needed to meet projections of continuing growth in the medium to long term.

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car crash

HHJ Gosnell: Aviva took a “jaundiced view” of the claim

A personal injury claimant cannot escape a fundamental dishonesty hearing by serving a notice of discontinuance, a circuit judge has held.

HHJ Gosnell said the new regime of qualified one-way costs shifting (QOCS) had not changed a much older rule that the service of a notice of discontinuance “is not the end of the matter for a claimant”.

He went on: “If a defendant thinks they can satisfy a court on balance of probability the claim is fundamentally dishonest, they can ask the court to direct that an issue arising out of that allegation be determined.

“I think it must be right that where the claimant does not give evidence or does not proffer any reason for the decision to discontinue, then the defendant can invite the court to draw an adverse inference.”

However, HHJ Gosnell also said he was not prepared for the claimant to be “condemned as being dishonest on paper”, and a hearing was necessary.

Ruling in Rouse v Aviva (claim no.A28YP882) at Bradford County Court, the judge said the case involved two “mature gentlemen” who claimed one of them was injured after their car was hit by a bird cage falling out of a Ford Focus in front of them.

“He suffered soft tissue injuries as a result which, I think, occupied him for about four months. The defendant perhaps understandably took a fairly jaundiced view of this claim given the circumstances and investigated it fully.

“Not only did the driver of the Ford Focus which the defendant insured give a statement that the birdcage had not fallen off his vehicle nor had any constituent parts fallen off it but also that he was prepared to argue that a friend had followed him to the auction he was travelling to and that, therefore, the claimant could not have been behind his vehicle at the relevant time.”

HHJ Gosnell said the claimant discontinued his claim two or three days before the trial, and the defendant applied to the court for a finding of fundamental dishonesty under CPR 44.16.

Overturning a ruling by District Judge Edwards that there should be a “paper consideration only”, HHJ Gosnell accepted his concern about “disproportionate costs”.

The circuit judge went on: “Any judge is going to be reluctant to encourage satellite litigation and disproportionate costs. Judges are quite familiar with having to do this when dealing with cases of misconduct under CPR 44.11 or dealing with issues such as applications against non-parties and wasted costs orders.

“It is a position that courts are very familiar with. There is an understandable reluctance to have additional costs incurred unless they are absolutely necessary.

“The reason I think they are necessary in this case and actually would be necessary in other similar cases is, strangely, not because it is fair to the defendants, it is actually because it is only fair to the claimant.”

The judge said the claimant was entitled to the opportunity to “convince the court that what may appear the case from the paperwork” was inaccurate.

“In this case we have two mature gentlemen, not the most likely fraudsters I have to say, but it may be that they could explain, for example, that even if the bird cage had not hit the car, something else hit the car which they thought was a bird cage.”

HHJ Gosnell concluded that it was within the court’s discretion to decide which procedure should be used to determine the issues.

“If it could only be done on paper I would have expected the rules to say so. Therefore, for the reasons that I indicate, in general terms, the court has the option how to adopt this procedure whether in writing, whether with a limited inquiry or whether with a full trial.

“In the particular facts of this case, it seems to me that either a full trial or a limited inquiry at least giving the claimant and his witness the opportunity to give evidence is the right and fair way to move forward”.

He granted the defendant’s appeal against the district judge’s ruling.

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MoJ; £3,000 cap

MoJ; £3,000 cap

The government has doubled the threshold above which third-party contributors to judicial reviews (JRs) will have to be identified.

It is also seeking further views on the extent to which other parties and the public should have access to financial information provided by applicants under sections 88 to 90 of the Criminal Justice and Courts Act 2015.

On Friday the Ministry of Justice (MoJ) published the outcome of the consultation launched a year ago on implementing the provisions of the 2015 Act, and said it was planning to push ahead with what it had proposed.

The rules will be drafted by the Civil Procedure Rule Committee and Tribunal Procedure Committee. Under them, claimants will have to provide a declaration about the funding of their case on an application for permission to bring a judicial review.

If self-funding or legally aided, they will not need to provide any more information, but where they are receiving funding from other sources, they will have to provide the court with the name, address and amount being contributed from anyone giving more than £3,000.

The MoJ said it was concerned that the original £1,500 threshold was “likely to see the court provided with unacceptably large amounts of unnecessary material”.

It continued: “Indeed, [the government] is persuaded by the weight of expert judicial experience and opinion that a higher than suggested threshold will provide the most appropriate balance and, taking into account the available data, proposes a threshold of £3,000.

“In the government’s view, that figure will capture many situations in which there are relationships of control without being unduly onerous on claimants or the court. Additionally, it is of the view that this represents a significant amount of money to most people – and on that basis it will capture many cases where there is an expectation of controlling the litigation – while eliminating relatively minor contributions and avoiding overloading the court with information it does not require to make a decision.

“In the government’s view, this amount is sufficiently significant for most people that there will be an expectation in many cases that those contributing in excess of this amount will be involved in the running of the claim. Therefore, it is right that the court be made aware of people making contributions of this scale and is able, if it deems necessary, to make further enquiries.

“The government will, however, keep this under keen review and may seek changes if it appears that the threshold is not working appropriately.”

If the claimant is a corporate body that is unable to show that it has or is likely to have sufficient funds, it will need to provide the name and address either of a person who it anticipates is able to provide information about its members and their ability to provide financial support, or, if there is no such person, one of its officers.

The government said that claimant would not need to provide their estimate of the total costs to the court.

The 2015 Act also introduces costs-capping orders for JRs – the enabling statutory instrument was laid before Parliament last week – and the MoJ said applicants for an order would have to provide a “more detailed picture” of their financial circumstances, including a breakdown of their significant assets, liabilities, income and expenditure. This would also include funding from third parties.

The MoJ initially suggested that financial information provided under the Act would not be made publicly available or provided to the defendant, but has shifted position in favour of claimants serving it on defendants and interested parties at the same time as the claim form. This might be subject to the court’s discretion to direct that some information is not served.

It said this would offer equality of arms and allow those parties to make fully informed representations to the court about costs at any point in the proceedings. Members of the public would have to apply to the court for permission to obtain a document.

The MoJ is seeking views on this by 18 August.

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Burcher Jennings200Amidst an environment where the legal industry has been subject to much change and transformation, Burcher Jennings hosted a Catastrophic Injury Conference on 10 November to provide legal practitioners with an update of past and future developments in this area.

Burcher Jennings provides a comprehensive portfolio of specialist costs, pricing and funding services designed to enable law firms to boost efficiency, profitability and cash flow in a new and innovative way.

The firm brought together leading experts and practitioners who shared their personal experiences, insight and guidance, with everything from marketing law firms, insuring, pricing and funding cases, to achieving the best possible results and maximum reward for their firm and clients.

Topics of discussion at the conference included Litigating Serious Head Injury Claims; the NHSLA Annual Report 2014 – 2015; ATE Insurance; Funding; Predicted reforms in Clinical Negligence for 2016-2017; Condition and Prognosis in Catastrophic Brain Injury Cases, and insight into pricing strategy for law firms.

Speakers included Dr Jay Jayamohan, Consultant Paediatric Neurosurgeon (of BBC’s ‘Brain Doctors’ fame); Grahame Aldous QC of 9 Gough Square; Professor Dominic Regan, Joanne Powell, Burcher Jennings and Professor David Chalk, Winchester University, Steve Din, Burcher Jennings ‘Funding for Growth’; Richard Burcher, Burcher Jennings and Viv Williams, 360 Legal Group.

Notable items covered included J Codes and Precedent Q by Joanne Powell while Dominic Regan discussed the likely advent of fixed costs in Clinical Negligence.

Both Dr Jay Jayamohan & Grahame Aldous QC highlighted the importance of speaking not only to the patient/claimant in depth when trying to ascertain condition and prognosis, but also the family/carers.

The event, which took place at the Holborn Bars, was well attended by legal practitioners in this area.

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Houses of Parliament

Lord Hunt called for government to proceed “with caution”

A clause inserted at the last minute into the Criminal Justice and Courts Bill, requiring courts to dismiss personal injury claims in their entirety where claimants have been “fundamentally dishonest”, has divided peers.

Lord Beecham, the shadow justice spokesman, described clause 45 – which followed a government announcement last month on reducing insurance fraud – as an “entirely one-sided sanction”, because it failed to penalise defendants. Under the clause, claims must be dismissed unless it would result in “substantial injustice”.

During the bill’s second reading in the Lords earlier this week, Lord Beecham said the clause was inserted “no doubt once again at the behest of the Conservative Party’s friends and supporters in the insurance industry”.

The peer went on: “Again, this is presumably a moveable feast. Of course, a court can already penalise a claimant in costs if it is satisfied that a claim has been exaggerated but, more to the point, this is an entirely one-sided sanction.

“A defendant behaving in similar fashion would suffer no penalty, even though such conduct in a personal injury claim could itself add to the claimant’s suffering.”

Liberal Democrat barrister Lord Marks argued that judges should have the power to throw out an entire case for extreme dishonesty or to reduce awards of damages to reflect the court’s view of such dishonesty.

“However, there are many cases which are affected by what might reasonably be described as fundamental dishonesty where the needs of the claimant for the rest of his or her life must come first and in fairness must be met, and where completely depriving the claimant of damages would be very wrong,” he continued.

“But instead of giving a judge a discretionary power to reject an entire claim or reduce damages to an appropriate extent, this clause would provide that the court must dismiss the claim unless satisfied that the claimant would otherwise suffer substantial injustice. Once again, I sense a lack of trust in judges to act sensibly in the exercise of their discretion in accordance with the justice and requirements of the particular case that they are hearing.”

Lord Hunt of Wirral, a Conservative peer and partner in defendant law firm DAC Beachcroft, supported the principle behind clause 45, but said it might need “clarification and further amendment”.

He asked: “What does it mean to be fundamentally dishonest? What is the difference between dishonesty and fundamental dishonesty? Is it a civil standard of proof? To impose a criminal standard of proof would make it extremely difficult to bring any defence on this basis.

“We also have the situation, which I have known in my career as a practising solicitor, where quite often an overzealous claimant lawyer will include all sorts of areas of claim for which the claimant probably never had it in mind to sue and perhaps will link subsequent injuries to the original accident, when they were clearly due to something that happened afterwards and independently.

“How are we going to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?”

Lord Hunt added that he was not saying the government was “opening up Pandora’s box” with clause 45, but called on it to proceed “carefully and with caution”.

The Association of Personal Injury Lawyers, in its briefing for the debate, said the clause would lead to increase in satellite litigation as lawyers quarrelled over the meanings of ‘fundamental dishonesty’ and ‘substantial injustice’.

APIL predicted an increase in spurious allegations of fraud or dishonesty by “unscrupulous insurers” and an increase in the number of genuine claimants who underplayed their symptoms or failed to bring valid cases at all.

But Lord Brown of Eaton-under-Heywood, a former justice of the Supreme Court, said he was “unpersuaded” by the briefing. He said: “True, it will be necessary on occasion to argue over whether the claimant’s untruthfulness or exaggerations constitute fundamental dishonesty and perhaps it will be necessary to argue whether dismissing his claim entirely would cause him substantial injustice.

“However, given the readiness of some these days to treat an accident as a God-given opportunity to make a fortune… this seems to be a clear steer to how judges should exercise their discretion in the matter. The modest narrowing of an existing discretion is a price worth paying for the discouragement which it is hoped this new provision will provide to those who are inclined or tempted to advance dishonest claims…

“I see no possible logic in suggesting that this provision should therefore be mirrored in regard to the defendant’s conduct of their defence. Surely, on analysis, there is no sensible parallel to be drawn between the opposing cases.”

Justice minister Lord Faulks welcomed Lord Brown’s comments, saying: “Frankly, we do not think that a judge will have any difficulty recognising fundamental dishonesty. We are talking not about a schedule that contains some slight exaggerations or minor inaccuracies, but about fundamental dishonesty.

“If we ask a jury to decide a question of what is dishonest or not, surely we can entrust a judge to decide whether, in appropriate cases, there is fundamental dishonesty. The government are appalled by the explosion of litigation in claims that involve, frankly, lying and fraud.”

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The Cloud: The new way to arbitrate

An online platform, described by its creator as “the only one in the world” to allow arbitrations to be conducted entirely on the internet, has launched with a pilot personal injury scheme.

Solicitor Tony Guise said his platform eARB was handling over 20 cases as part of a pilot scheme developed by the Personal Injury Claims Arbitration Service (PlcARBS) and launched in November last year.

Mr Guise said a dozen claimant personal injury firms were involved, including Slater & Gordon, Hodge Jones & Allen, Shoosmiths and Minster Law, alongside defendant insurance specialist Clyde & Co and insurer AXA.

He said there was no reason why the system could not build up the caseload to the “low thousands” over the next five years, though its focus was on cases worth over £25,000.

“This is a way of avoiding the high costs and well-known problems of the litigation system,” Mr Guise said. “It’s got off to a good start.

“From start to finish, everything can be conducted in the Cloud. It’s possible to have paperless hearings, with interlocutory applications by phone and everyone accessing the documents online. Options for saving money and speeding up justice are here now.”

Mr Guise said service could be carried out by email, and a redacted form of rulings would be published on the platform, so case law could be built up – an issue that senior judges had mentioned in recent speeches.

The solicitor said he had approached NHS Resolution, which was looking at the arbitration scheme alongside its own mediation scheme for medical negligence cases.

Mr Guise said eARB was also “in discussions” to set up a service for commercial arbitrations, and he was having a further meeting with the Institute of Family Law Arbitrators later this month.

He said that after closing his City law firm in 2016, he had concentrated on his work as director of eARB, and spoken to arbitration centres across the world, including Singapore, Paris and New York.

“You would think they already have this kind of thing, but they don’t.”

He described the development of online dispute resolution in the UK as a disappointment and said he did not think the online courts initiative would have an impact on arbitration.

“There’s no real threat to us from online courts, and they’re highly unlikely to get going. There is very little happening at the moment.”

PIcARBs was set up by personal injury silk Andrew Ritchie QC in June 2015, designed particularly for cases worth over £50,000.

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Neuberger: figures are very disturbing

The pre-Jackson regime of recoverable success fees and after-the-event (ATE) insurance may breach the European Convention on Human Rights, with “very serious consequences for the government”, the Supreme Court suggested yesterday.

Lord Neuberger, the court’s president, said that if this argument was right, those who paid out disproportionate additional liabilities “may well have a claim for compensation against the government for infringement of their article 6 rights”. Article 6 is the right to a fair trial.

Implicitly acknowledging the tide of litigation that could follow such a decision, he did not take the argument any further at this stage, saying the government needed the chance to address the court.

Coventry v Lawrence (No2) [2014] UKSC 46 concerned a successful private claim for nuisance brought against the occupiers of a speedway track by two local residents. In a case run under the pre-Jackson costs regime established by the Access to Justice Act 1999, the residents won at first instance, a decision overturned by the Court of Appeal before being restored by the Supreme Court earlier this year. The two respondents were ordered to pay £10,350 each in damages, and 60% of the appellants’ costs.

The appellants’ base costs from the original trial were £398,000, plus a success fee of £319,000 and ATE premium of about £350,000, totalling £1,067,000. This meant the respondents were liable for over £640,000, even before the costs of the two appeals were considered.

“These figures are very disturbing,” said Lord Neuberger, giving the main ruling. “They give rise to grave concern even if one ignores the success fee and ATE premium. The fact that it can cost two citizens £400,000 in legal fees and disbursements to establish and enforce their right to live in peace in their home is on any view highly regrettable…

“The point can equally forcefully be made from the point of view of the respondents. As relatively small business operators, they are not only having to fund their own costs, which presumably would be of the same order, but in addition they are going to have to pay some £240,000 towards the appellants’ costs. It is true that the respondents lost, but they were seeking to defend their businesses and they plainly had a reasonable case, as is evidenced by the fact that they won in the Court of Appeal.”

Lord Neuberger acknowledged how hard it is to ensure that “a case, particularly one that does not involve a very large sum of money but is potentially complex in terms of fact, law and expertise, such as the present case, is both properly and proportionately litigated”.

But he continued: “It would be wrong for this court not to express its grave concern about the base costs in this case, and express the hope that those responsible for civil justice in England and Wales are considering what further steps can be taken to ensure better access to justice. It is only fair to emphasise that this concern relates to the current system and that it is not intended to imply any criticism of the lawyers in this case.”

Lord Neuberger made plain his support for the Jackson report changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, noting among other criticisms of the old regime that while proportionality had a part (albeit limited) to play when assessing the recoverability of base costs, it was excluded from consideration in relation to the recovery of success fee or ATE premium, which were simply required to be reasonable.

Lord Neuberger said the development of European Court of Human Rights jurisprudence – including in the Naomi Campbell case – in recent years meant the court could reconsider the question of whether the 1999 Act costs regime infringed the convention, despite the earlier House of Lords rulings in Callery v Gray and Campbell that it was lawful.

“In the light of the facts of this case and the Strasbourg court judgments relied on by [the defendants], it may be that the respondents are right in their contention that their liability for costs… would be inconsistent with their convention rights,” he said.

The judge also considered how the case may proceed, saying it could be that the Court of Appeal, or even the trial judge, should consider the issue first. There is likely to be a hearing to decide this with all those involved, including any relevant interveners.

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Supreme Court

Supreme Court: House of Lords decisions result in “unfair outcomes”

The Supreme Court has overturned two House of Lords judgments in ruling that the multiplier in assessing damages for fatal accident claims should be calculated from the date of the trial, not the date of death.

The court, made up of seven justices, described the reasoning in the House of Lords decisions as “illogical” in the current legal climate and said it “results in unfair outcomes”.

Delivering the judgment of the court, Lord Neuberger and Lady Hale said the current system, based on the date of death, led to “under-compensation in most cases”.

They said that, in the case before them, the claimant would receive over £58,000 less if the date of death was used.

The justices said the Law Commission had recommended in its report Claims for Wrongful Death that, as in personal injury cases, multipliers should be used in calculating future losses in fatal accident cases from the date of trial.

The court heard in Knauer v Ministry of Justice [2016] UKSC 9 that Mrs Knauer died from mesothelioma at the age of 46, while working as an administrative assistant at a prison. Her husband made a claim for future loss of dependency under the Fatal Accidents Act 1976.

The ministry admitted liability in December 2013, and a damages hearing took place before Mr Justice Bean in July 2014.

Bean J held that he was “bound to follow” the approach of the House of Lords in Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 and to calculate the multiplier from the date of death.

However, Bean J said that if he had been “freed from that authority” he would have preferred to take the approach taken by the Law Commission. The judge granted a certificate enabling an appeal against his decision to go directly to the Supreme Court.

Lord Neuberger and Lady Hale said the House of Lords cases were decided in a “different era” when the calculation of damages for personal injury and death was “nothing like as sophisticated as it now is” and courts discouraged the use of actuarial tables.

The justices said the old approach relied on the “intuition of barristers and judges” and was “wholly unscientific”. In particular they said the Ogden Tables, which first appeared in 1984, did not exist when the House of Lords rulings were delivered.

The Supreme Court said it “should be very circumspect” in invoking the 1966 Practice Statement (Judicial Precedent) to overrule previous House of Lords decisions, but in this case it had “no hesitation” in doing so.

The court accepted that there were “examples of over-compensation” in the operation of the Fatal Accidents Act, where for instance the claimant remarried, but the “solutions must lie with parliament”.

The Supreme Court allowed Mr Knauer’s appeal and ruled that “the correct date as at which to assess the multiplier when fixing damages for future loss in claims under the Fatal Accidents Act 1976 should be the date of trial and not the date of death”.

Lords Mance, Clarke, Reed, Toulson and Hodge contributed to the judgment.

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Share valuation provisions, whether in Company Articles or elsewhere, are sometimes vague and imprecise, causing avoidable difficulties and unintended consequences for share valuers and shareholders alike.

MBL’s practical one day course on the subject will be of benefit to legal advisors involved in commercial and family law, litigation, tax and ADR.

By highlighting many examples of the damage and financial loss caused to the latter by inappropriately drafted provisions this course emphasises the importance of ensuring that they are relevant and fit for purpose.

For more information on seminar dates and costs or to make a booking please email quoting Litigation Futures. With nationwide dates available there’s sure to be something to suit your diary!

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Supreme Court

Lord Mance: “principled solution” must be found

Insurers liable to pay compensation to mesothelioma victims have rights to pro rata contributions from other insurers and/or employers covering some of the time of exposure, the Supreme Court has ruled.

Lord Mance, who led the majority, decided that a “broad equitable approach” should be taken and contributions from insurers should take into account differing lengths of exposure to asbestos.

“The court is faced with an unprecedented situation, arising from its own decisions affecting both tort and insurance law,” Lord Mance said. “A principled solution must be found, even if it involves striking new ground.”

Three justices agreed with his arguments – Lords Clarke, Carnwath and Hodge. Lord Sumption came to a similar conclusion, but by a different route – one that was preferred by Lords Neuberger and Reed.

The court heard in Zurich Insurance plc v International Energy Group [2015] UKSC 33 that the case arose from the situation in Guernsey, which has no equivalent of the Compensation Act 2006. Under the Act employers are liable in full.

A worker on the island, exposed to asbestos dust from 1961 to 1988, sued his former employer after he contracted mesothelioma. IEG was successor in title to the employer. Among the employer’s liability insurers was Midland Assurance, from 1982 to 1988.

As successor to Midland’s liabilities, Zurich argued that it was only liable to meet just over 22% of IEG’s loss, based on the fact that Midland was insurer for that proportion of the overall exposure time.

However, Zurich was ordered to pay 100% of both the compensation and defence costs by the Court of Appeal. Zurich appealed to the Supreme Court.

The justices agreed that, because the 2006 Act does not apply in Guernsey, Zurich was not required to cover the full loss but only the period that Midland was liability insurer.

However, they did not restrict themselves to the case before them, and went on to rule on what the outcome would have been the same on the mainland, where the Act did apply.

Lord Mance argued that a “broad equitable approach” should be taken and contribution between insurers covering liability on the basis of exposure “should take account of differing lengths of insured exposure”.

He went on: “In my opinion, therefore, Zurich is entitled to look to IEG to make a contribution based on the proportionate part of the overall risk in respect of which it did not place insurance with Zurich, and in respect of which Zurich does not recover contribution from any other insurer.”

Lord Mance ruled that Zurich was also entitled to a contribution from another liability insurer, Excess.

However, he dismissed Zurich’s appeal on defence costs, where no equitable right to contributions existed.

David Pugh, a partner at Keoghs, acted for the Association of British Insurers, which intervened and agreed with Zurich’s arguments.

Mr Pugh described the Supreme Court decision as “very positive for insurers” who could “continue to seek contributions from solvent policyholders in mesothelioma claims”.

He went on: “There will be minimal disruption to insurers’ existing claims handling practice – including the principle of pay and be paid.

“The preservation of claimant compensation heads off any need for parliamentary intervention, which is always uncertain of outcome.”

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Professor Oliphant: costs preoccupation on all sides

Professor Oliphant: costs preoccupation on all sides

The personal injury claims process in England and Wales is combative and often involves inflated opening offers on the claimant side, while claimant lawyers suspect defendants engage in similar tactics such as raising defences they know lack merit, according to academic research.

Meanwhile, it found “widespread general concern that market-driven reforms have led to a ‘dumbing down’ of the PI claims resolution process”.

The research was summarised in a paper comparing the claims process in England and Wales, the Netherlands, and Norway, delivered by Ken Oliphant, professor of tort law at the University of Bristol, at a British Institute of International and Comparative Law event last week.

It found that lawyers in the Netherlands favoured an essentially cooperative approach to claims resolution, although they acknowledged a more combative approach might be necessary. Meanwhile in Norway, “all sides [were] keen to emphasise the high levels of cooperation in the system”.

The qualitative research – with interviews carried out by academics from Bristol, Cardiff Law School, the University of Bergen in Norway, and the Erasmus School of Law, Rotterdam, Netherlands – found that in England and Wales, “lawyers on rival sides express greater antagonism towards each other than elsewhere. They say that the process is characterised by high levels of distrust”.

It continued: “For both sides, litigation is akin to ‘a game’ or ‘a trial of strength’. Some lawyers glorify in its combat like aspects.

“Lawyers here are more likely to boast of their ability to play ‘hard ball’ if the need should arise: ‘if you’re going to put the boot in, make sure your laces are done up’. Nevertheless, several lawyers stress the benefits of cooperation.”

PI claimant lawyers who spoke to the researchers admitted to inflating opening offers but accused defendants of similar tactics: “Raising defences they know lack merit; delaying proceedings to grind claimants down; trying to exploit the victim’s financial need by making low offers…

“They also look for possible conflicts of interest between claimant lawyer and client: Does the claimant lawyer want rid of the case because he’s on a fixed fee?”

Cost was “a preoccupation on all sides, inducing corner cutting and depressing quality”, the researchers found. Financial pressures were also admitted, mainly by claimant lawyers, in the Netherlands to influence decision making.

In Norway, personal injury specialists saw themselves as “members of the same ‘club’” who were “aware that Norway is a small country and that the community of personal injury specialists is very tight-knit”. This meant they feared their reputations “would suffer if they were to engage in sharp practice”.

The research found that this factor, coupled with the significant role of public compensation boards in PI claims and the generally high levels of wealth in Norway, all contributed to a less combative approach.

However, Professor Oliphant stressed: “In all the legal systems, legal professionals on every side accepted the need for a flexible approach tailored to the circumstances of the claim and responsive to the attitude of one’s opponent.”

Further, the research showed the importance of ‘legal culture’, which “can shape the ‘personal injury claims economy’ [how the business of personal injury claims is conducted] in different ways in different places, in some places projecting a strong professional ethos, elsewhere putting the main emphasis on business efficiency”.

In England and Wales and in the Netherlands, the researchers found concern that the opening up of legal services was depressing the quality of personal injury claims handling, in particular in both countries the prominent role of non-legally qualified paralegals and claims advisors.

The research concluded: “The strong professional ethos in Norway contributes to the more cooperative attitudes projected by those involved in the resolution of claims, and the higher degrees of mutual trust, than in countries where deregulation has proceeded apace in recent years.”

By contrast, in England and Wales and to some extent the Netherlands, a deregulated approach to legal services “has profound implications for the ways in which personal injury claims are ‘constructed’, and thus for how they are resolved in practice”.

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The FCA has published its provisional findings and remedies following its Market Study into sales of add-on insurance products. As an acclaimed supplier of Home Emergency Assistance ARAG was pleased to provide evidence in support of the FCA’s work.  Its report contains a number of positive messages which are reassuring to ARAG, to our agents and to our policyholders.

The FCA’s provisional findings may not immediately point to poor consumer outcomes however the FCA believes that there is a clear case for intervention because competition in the supply of add-on products is not effective.

Looking at the FCA’s provisional remedies, we support the banning of opt-out methods of sale and work towards improving price comparison websites for users. Our main concern rests on the FCA’s “sun light remedy” which we believe may have unintended and unwelcome consequences for consumers.  Publishing the amount paid out in claims as a percentage of what is received in retail premiums provides inexact guidance to consumers as it ignores the value of additional services which are enjoyed by policyholders but not reflected in external claims costs. It also fails to take into account the cost of product manufacture, compliance, claims handling and distribution and does not address the “opportunity cost” – the detriment that individuals suffer if they do not insure. This proposal is effectively  a  price control mechanism which has the potential to remove viability from the product distribution chain and lessen consumers’ access to products.

Insurers and product distributors have been invited to provide feedback before 8th April. Thereafter the FCA will consult with interested parties to draft new rules and work towards implementation in 2015. ARAG intends to be very much involved in dialogue with the FCA over the coming months as we debate how provisional remedies are likely to impact on access to and availability of products.

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Linetime200Freeths LLP has contracted with Linetime to implement their Liberate litigation software. The system will support the firms growing Commercial Recoveries team.

Freeths LLP have 700 staff operating from 11 cities, offering a wide range of services for businesses and individuals.

Graeme Danby, head of creditor services at Freeths, said: “We already had a system in place handling the core of our day to day case loads. As part of our plans to grow the business unit, we undertook a review of our supporting technology. After researching the leading providers we selected Linetime’s Liberate system. It will assist in the provision of a streamlined, efficient and consistent service for our clients.”

The team will benefit from greater systems support and clients will have online access via the Liberate web portal to real time case information.

Freeths Recoveries team acts for Invoice Finance Providers, Insolvency Practitioners, Local Authorities and Finance Companies.

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Moulton: impressed by business model

Top private equity investor Jon Moulton has become a “significant minority equity shareholder” in insolvency litigation funder Manolete Partners PLC after completing a personal investment in the company.

John Jarvis, from Mr Moulton’s family office, will join the Manolete board, sitting alongside the company’s co-founder and CEO Steven Cooklin and Mike Faulkner, the co-founder and CEO of P-Solve, part of the Punter Southall Group, which is a long-standing investor in Manolete.

Mr Moulton is currently chairman of Better Capital – whose recent investments include fashion retailer Jaeger and windows company Everest – and the former managing partner of Alchemy Partners.

He said: “I have been greatly impressed by the Manolete business model and its management team. I know the UK rescue and recovery market very well and Manolete’s products significantly add to insolvency practitioners’ ability to maximise creditor returns.”

Mr Cooklin added: “We are delighted to have attracted investment from someone of the calibre of Jon Moulton. His knowledge and experience of the UK recovery market mark him as a genuine ‘value-added’ investor and his support provides us with an excellent platform to continue the rapid expansion of the business.”

The Manolete model is not simply to provide funding to the insolvency practitioner; instead it buys claims outright for cash, pursuing them in its own name and then returning a substantial share of the proceeds back to the creditors of the insolvent company. Manolete makes its return by retaining a residual share of the proceeds.

The company said its products have appealed across the entire spectrum of the UK insolvency and recovery market, purchasing cases from the very largest accountancy groups, such as PwC, PKF and RSM Tenon, through to smaller insolvency and recovery focused boutiques such as Wilson Field, Carter Clark and Leonard Curtis. The cases range from large multi-million pound claims, such as a major compensation claim under the Buildings Act against a borough council that went to trial in the London Technology and Construction Court earlier this year, through to smaller £30,000-£50,000 claims against individual directors who have wrongfully extracted funds from their companies in the lead up to insolvency.

Manolete claimed that it has a “particularly impressive track record against these so-called dodgy directors – often recovering the entire debt owed to the company within just a few months of buying the claim and having expended minimal sums on legal costs”.


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Niemczewski: working party needed

The government needs to look at the underlying problems of the RTA claims process before extending it, or risk as many as 80% of cases falling out of it, the head of leading liability adjuster Garwyn Group has warned.

The Ministry of Justice is expected to announce the findings of its evidence-gathering exercise on the proposed RTA process extension in the next few weeks, with the aim of extending it to road traffic cases worth £25,000 and to employer’s and public liability (EL/PL) claims, by April 2013.

Artur Niemczewski, CEO of Garwyn Group, referred to the review of the process undertaken by Professor Paul Fenn and commissioned by the MoJ – published in July, this found that half of cases fall out even though liability is clear cut, which is less likely to be the case in EL and PL claims.

Mr Niemczewksi said: “Serious questions must therefore be asked about the effectiveness of the process in delivering its stated aims. If the government does not address the underlying issues before extending the process to EL and PL, we anticipate a much higher proportion of claims – possibly up to 80% – will drop out, and the process simply won’t work.

“Our experience is that the main reason claims leave the motor process is that the defendant is unable to respond on liability within the prescribed timescale, often because of inadequate information in the claim notification. There should therefore be a direct correlation between the mandatory content of the letter of claim and the period that the defendant is allowed to respond on liability.

“We call upon the government to recognise this fundamental principle and form a working party of practitioners to define content and timescales to allow the proposed portal extension to achieve its objectives.”

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Hallett LJ

Hallett: programme will give candidates “tools they need to compete”

The Judicial Office has launched a pilot programme to improve the diversity of the High Court bench and encourage more applications from senior lawyers and legal academics.

Places on the programme, which includes work shadowing and mentoring with a High Court judge, will be limited to women and those from BAME or “less advantaged social or educational” backgrounds.

A spokesman said the programme would run from the end of this month to June and conclude with a one-day applications workshop, giving advice on how to prepare for a selection exercise run by the Judicial Appointments Commission (JAC).

A JAC selection exercise in July this year will, for the first time, allow those with no previous judicial experience to apply to be deputy High Court judges.

Launching the diversity programme, Lady Justice Hallett said involvement was limited to women and those from minority or disadvantaged backgrounds because those were the areas where the judiciary was “significantly less representative” of society.

“Taking part in the support programme will not guarantee appointment by the Judicial Appointments Commission as a deputy High Court judge or success in a subsequent High Court exercise,” she said.

“Appointment is on merit – and rightly so. But hopefully, it will encourage candidates to apply and provide them with the tools they need to compete.

“The judiciary of England and Wales is the envy of the world for its skill, fairness and integrity. Sitting as a High Court judge is one of the toughest legal jobs there is; but it is also one of the most satisfying and intellectually rewarding.”

A spokesman for the Judicial Office said taking part in the programme was completely separate from the JAC and no “guarantee of success” in its selection exercises, but it would provide candidates with support to help them apply.

As well as coming from the three specified groups, applicants for the 30 places on the programme should have the qualifications required to apply to be a High Court judge and must have no previous judicial experience.


The misleading claims behind the campaign to lower the discount rate

Matthew Best Temple Legal Protection

A coalition of organisations which represent the NHS and health professionals has made strong claims in a letter to justice secretary David Gauke that the legal costs of clinical negligence claims are crippling the NHS. Similar comments were made by the National Audit Office (NAO) in September last year and yet the case doesn’t hold water. The letter was signed by the NHS Confederation, Academy of Medical Royal Colleges, British Medical Association, Family Doctors Association, Medical Protection Society, Medical Defence Union and the Medical and Dental Defence Union of Scotland.

February 9th, 2018