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Rossanna Schurink, director at  Virtus-Law

“As a newly established firm, our main priority is to build and maintain excellent relationships and in order to do this, our core technology needs to ensure the entire claims process is seamless – for us and our clients.

Throughout our first year of business, Eclipse’s Proclaim Practice Management Software solution has proven crucial to us in saving time, streamlining client inception and reducing administrative overheads.”

Rossanna Schurink, director of Virtus Law Ltd

Based in Manchester, Virtus Law Ltd is a boutique firm specialising in personal injury. Founded by Rossanna Schurink in 2015, the firm was set up to offer clients expert advice and guidance through the claims process, which can often be very stressful.  The team has a wealth of knowledge and experience within the industry, and although the practice has plans for expansion, Virtus Law Ltd aims to continue offering a truly personalised service.

The challenge

As a new start-up, Virtus Law Ltd needed a legal software solution that could enable the team to focus on developing the practice’s reputation, increasing case volume and forming client relationships.

Crucially for a new firm, Virtus Law Ltd needed a practice management software solution to streamline processes from case inception, whilst keeping manual administration to a minimum.

The solution

Although Rossanna had previously used Proclaim and knew of its capabilities, she was interested to see Eclipse’s overall operation and service offering from its Bradford HQ. Following a meeting and in-depth demonstration of the software, Virtus Law Ltd selected the Proclaim Personal Injury Practice Management system.

The results

As a boutique firm, Virtus Law Ltd needed an extremely efficient on-boarding process that could cope with a high volume of cases. Since the implementation of Proclaim, the practice has seen enhanced client inception procedures – all relevant documentation is created at the start of a case, and collated at the click of a button. From here, the pack is sent securely, electronically signed by the client and returned to Virtus Law, within a matter of minutes, guaranteeing work is commenced instantaneously.

Furthermore, proclaim is used by a number of medical agencies meaning client details can be seamlessly transferred between Virtus Law Ltd and its chosen agency quickly and efficiently, ensuring clients receive details of medical appointments as soon as possible, serving to further streamline the process.

Additionally, the integrated accounting and financial toolset provides a fully centralised system and offers a seamless approach to billing and overall practice management, ensuring a detailed analysis of operations.

Case Study highlights:

  • Fully integrated Proclaim Practice Management system
  • Streamlined and efficient client inception
  • Seamless approach to billing
  • Comprehensive management of claims



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Due to continued expansion Kain Knight have opened a satellite office directly opposite the Royal Courts of Justice.

We have found that our in-house team has experienced a dramatic increase in instructions since costs budgeting began to take hold necessitating an increase in that particular division.

Our commercial clients, with larger budgets that require in-house drafting has also necessitated an expansion of the London team of Costs Lawyers.

Conveniently the new office is situated at 218 Strand, which is ideally suited to servicing the traditional local legal community.  This now includes the Bar, with whom we are further extending our working relationship, particularly with regard to Precedent H.  This new office combined with our long-term City presence enables us to fulfil all client service expectations in Central London.’

Nicholas Clark, Business Development Director commented,  ‘As a result of our extensive work with our clients on Precedent H it has been identified that further expansion in the London market was essential” 

 




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The rapidly-changing landscape of ATE insurance and the introduction of QOCS has led independent ATE insurance specialists Parker Colby to undertake a comprehensive rebranding exercise which sees the firm renamed ‘Amberis’ in order to re-affirm their position alongside their peers in the personal injury industry.

Having traded as Parker Colby for over 12 years, organic growth has seen them established as a high volume player in the ATE market working with some of the UK’s largest law firms and with a reputation for quality products and service.

As independent brokers, Amberis will analyse the market place and work to tailor the best solution for a firm’s specific needs. This means that the client is provided the regulatory assurance that an informed decision has been made.

The firm has a completely new identity and has launched a website specifically targeted at the ATE sector.

Amberis have also strengthened their team with the recent recruitment of Rory Wilson who joins the company as business development manager and the firm claims that this appointment shows their commitment and intention to push for increased market share in a new look ATE market place.

Wilson said, “Our customers have been very vocal in the support of our work, in no small part attributed to the quality of product and the high level of service they receive. However, we are conscious that the brand ‘Parker Colby’ might not be in everyone’s conscious thought. It is a chance to re-invigorate what we do and push a brand which will be recognised for unique, attractive, solid and reliable protection. We think that the properties of Amber reflect these qualities and provide us with the perfect metaphor.

“Our new website www.amberis-ate.com is being developed as a central verification point for clients and prospects alike. We will be adding content regularly in order to reflect the ever changing P.I. landscape and provide the visitor with valuable insight from the Amberis team. We work hard to establish a clear understanding of each individual client’s case mix and do this through our own process-driven profiling model. The site gives an overview of this process and, to see it in action, clients can request a one-to-one consultation.”

 




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Master Matthews: “greater consistency in using the computer”

The High Court has approved the use of predictive coding in e-disclosure, for what is believed to be the first time in this jurisdiction.

Ruling in a case involving 3.1m documents, Master Matthews described predictive coding as a review “undertaken by a proprietary computer software rather than human beings”.

He went on: “The software analyses documents and ‘scores’ them for relevance to the issues in the case. This technology saves time and reduces costs.

“Moreover, unlike with human review, the cost does not increase at the same rate as the number of documents to be reviewed increases. So doubling the number of documents does not double the cost.”

The High Court heard in Pyrrho Investments and others v MWB Property and others [2016] EWHC 256 (Ch), yet to be published, that two claimant companies sued four directors and a property company in respect of payments allegedly made as a result of breach of fiduciary duty.

Master Matthews cited 10 factors in favour of the use of predictive coding.

He said that experience in other jurisdictions, although “limited”, had shown that predictive coding could be useful in appropriate cases.

“There is no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than, say, manual review alone or keyword searches and manual review combined”.

The Master said there was some evidence from US and Irish cases to the contrary.

He went on: “Moreover, there will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds of lower-grade fee-earners, each seeking independently to apply the relevant criteria in relation to individual documents.”

“There is nothing in the CPR or Practice Directions to prohibit the use of such software.

“The number of electronic documents which must be considered for relevance and possible disclosure in the present case is huge, over 3m. The cost of manually searching these documents would be enormous, amounting to several million pounds at least.”

Master Matthews said that, in his opinion, “full manual review” of each document would be “unreasonable” under the Practice Directions, “at least where a suitable automated alternative exists at lower cost”.

He said the estimates given for the use of predictive coding in the case ranged from almost £182,000 plus monthly hosting costs of £15,700 to £469,000 plus monthly costs of almost £21,000, which was “obviously far less expensive than the full manual alternative”.

The Master said that, bearing in mind that the value of claims in the case was “tens of millions of pounds”, the estimated costs of using predictive coding software were proportionate.

“The trial in the present case is not until June 2017, so there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.

“The parties have agreed on the use of the software, and also how to use it, subject only to approval of the court.”

Since there were “no factors of any weight pointing in the opposite direction”, the Master concluded that the case was suitable for the use of the software, although “whether it would be right for approval to be given in other cases will, of course, depend on the particular circumstances”.

A spokesman for Taylor Wessing, which acted for the fourth defendant, said he hoped that “we have seen the birth of a new standard order that will be used in all cases where directions for the use of predictive coding are appropriate”.




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Keen: government ready to investigate should the need arise

There is currently no need to introduce statutory regulation of third-party litigation funders, the government said yesterday.

Justice spokesman Lord Keen said there was no reason to move away from the voluntary scheme.

Conservative peer Lord Hodgson of Astley Abbotts asked in a written parliamentary question whether the government planned “to introduce regulations to ensure that third-party litigation funders are subject to the same statutory duties and obligations as apply to law firms operating in the same field”.

Lord Keen replied: “The government does not believe that the case has been made out for moving away from voluntary regulation, as agreed by Parliament during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

“The market for third-party litigation funding (TPLF) remains at a relatively early stage in its development in this jurisdiction and we are not aware of specific concerns about the activities of litigation funders.

“The government has not therefore undertaken a formal assessment of the effectiveness of the voluntary code of conduct or the membership of the Association of Litigation Funders. The last government gave Parliament an assurance that it will keep third-party litigation funding under review and this government is ready to investigate matters further should the need arise.”

Writing on the Conservative Home website last summer, Lord Hodgson said it was “astonishing” that the funding industry – with “billions of pounds of assets under management worldwide”, and London “one of the international funding hubs for these investors” – was not regulated like other financial services.

He quoted at length a report by the US Chamber of Commerce’s institute for legal reform that identified various problems with TPLF.

The chamber has been in the UK for several years, actively lobbying against funding and calling for statutory regulation, including during the passage of LASPO.

Lord Hodgson’s article concluded: “There is a strong argument for a full parliamentary review of the extent of TPLF. This also could usefully consider potential safeguards, including transparency requirements, registration of funders and prohibition on funder control of proceedings.”

Steven Friel, chief executive of Woodsford Litigation Funding, said: “It is unsurprising that the government has no concerns about the activities of litigation funders.

“I recently carried out a survey of the law and practice of litigation funding in 16 international jurisdictions, including England and Wales. I asked legal and industry experts in each of those jurisdictions about disputes or other problems relating to litigation funding, and the feedback was that there are few, if any, problems. If it ain’t broke, don’t fix it.”

On the same day as his question to the Ministry of Justice, Lord Hodgson asked the Department for Business, Energy and Industrial Strategy whether it had “undertaken any consultation with consumer groups about whether consumers involved in the recent Mastercard court case were adequately protected by the provision of the Consumer Rights Act 2015”.

This case, using the new opt-out class action regime – which is also strongly criticised by the chamber – is backed by third-party funding.

In response, minister Lord Prior noted that the £14bn case filed against Mastercard at the Competition Appeal Tribunal in September 2016 was still in its early stages.

“It would be premature to undertake a consultation on the Act’s impact at present. The government is required to carry out a full review, consulting a wide variety of stakeholders, including consumer groups, once the Act has been in force for five years.”




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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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PrintHarmans Costs are pleased to announce that Costs Lawyer, Suzanna Popplewell, has joined the team at their Chelmsford office.

Suzanna, who is also a qualified solicitor, joins Harmans from McMillan Williams Solicitors Ltd where she was partner and head of costs and brings with her more than 24 years of experience. She is used to dealing with all aspects of costs including Clinical Negligence, Civil Litigation, Family and Criminal matters.

Working out of Harmans’ Chelmsford office Suzanna will be working alongside partners Gary Knight, Mat Knight, Jim Knight and James Scott with their growing Essex client base.

Matthew Harman, partner, said, “We are delighted to welcome Suzanna to the Harmans team in Chelmsford. Harmans are very much focused on strengthening our already significant costs experience this year and Suzanna’s expertise will certainly help us achieve our targets in 2016.”




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Wallis: challenging landscape

Work to adapt the RTA portal for extension both vertically and horizontally has begun, the company that runs the technology revealed yesterday – but it said there are “no guarantees” that they will be completed in time for April 2013.

RTA Portal Co has instructed CRIF Decision Solutions Ltd as its technology partner to increase the capacity of the electronic claims system to deal with RTA claims worth up to £25,000, from the current £10,000.

CRIF will also assist with the development of the electronic claims gateway that will support the employers’ liability (EL) and public liability (PL) claims protocols that are currently out for consultation.

The company has always been clear that it needs the rules – that is, the protocols – before it can build the systems to implement them. In a statement, it said that while the protocols are being finalised, RTA Portal Co and CRIF are working on the necessary changes.

Tim Wallis, chairman of RTA Portal Co, said: “We expect the landscape ahead to be challenging. We continue to work closely with the Ministry of Justice and await the finalised detail of the protocols. We will continually assess the system requirements as more detail emerges over the coming weeks and months.

“We know that our user community is anxious about the timetable and ensuring they can develop their systems in time to support these changes. In the meantime we are going as far as we can to develop the system as part of the intention to implement this by April 2013 but there are no guarantees.”

Last week, one of the claimant representatives on the board of RTA Portal Co, David Bott, laid out the challenges of having the EL/PL portal ready in time for April.

As things stand, however, the government remains committed to April for implementation of both extensions of the portal.

 




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inCase200Revolutionary award-winning mobile app inCase continues to impress with another shortlisting for the Technology Initiative of the Year Award.

This is the fifth time in 12 months that inCase has been shortlisted for an award and having already attained two winner trophies, the founder and developer, Sucheet Amin is hoping to walk away with a third at the Modern Claims Awards 2015 to be held on 30 April 2015.

Redefining the way in which law firms deliver legal services, inCase delivers a complete communications package for clients, measurable financial savings for law firms and drastically improving client service.

Sucheet said “being shortlisted for this award is recognition that inCase is benefiting law firms and bringing real value to those firms and the clients they serve. With our recent launch of an app specifically designed for conveyancing firms and a facility for clients to pay via inCase, we are really pushing the boundaries of this cutting edge technology”.

Sucheet, a personal injury solicitor with his own legal practice, Aequitas Legal in Manchester, first developed his own mobile app in 2012 for his clients. Learning what made clients engage with mobile apps and his knowledge of the PI industry, he was able to develop a unique solution as demand for information and regular updates from his clients grew.

Sucheet added “we are in a varied and tough group of finalists. However, the whole inCase team is proud to be amongst them and we just hope that the judges recognise the importance of mobile apps forming part of a firm’s digital strategy and how we help overcome that particular challenge.”

The mobile apps market has grown considerably with the strength of smartphones. inCase takes advantage of this communication tool, providing an all-encompassing experience for clients whilst delivering real cost savings to those firms recognising the importance of a mobile app service.

 




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Despite atrocious weather and a Tube strike, Kain Knight, one of the UK’s largest firms of costs lawyers, successfully raised over £2,000 for charity at its first City of London pop quiz event on Wednesday night.

With around 120 lawyers and barristers representing 21 separate law firms and barristers’ chambers, Kain Knight’s charity evening raised £1,700 for national charity the Alzheimer’s Society, and £300 for local Kent charity Canterbury Oast Trust, which supports adults with learning disabilities.

The winning team were from law firm Charles Russell, who overcame fierce competition in a very close finish between a number of teams.

In the charity auction during the quiz, Clare Kelly, a partner from law firm Anthony Gold, made the highest bid of £220 for the star prize, which was having Kain Knight’s Chairman and founder Michael Kain work in her office for the day.

Kain Knight’s Chief Executive Officer, Peter Petyt, who hosted the evening, said:

“I’d like to thank all those involved for their hard work who helped make the Kain Knight City pop quiz such a success. Despite the rotten weather and the industrial action on the Tube, we had a packed event, with our guests generously helping us to raise over £2,000 for two very good charities.  The feedback from everyone was so positive we have decided to make this an annual event.”




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harvey-howellYoung North West firm, Harvey Howell Solicitors, is implementing the Law Society Endorsed Proclaim Practice Management Software solution from Eclipse Legal Systems, the UK’s leading legal software provider.

Harvey Howell Solicitors is a modern and professional law firm based in Liverpool. Specialising in Private Client and Family work, the team of qualified solicitors boasts extensive experience and provides a dedicated service to a range of clients, from police federations and hospitals through to local and national charities and palliative care teams.

Eclipse will implement its Proclaim Case Management Software solution firm-wide, serving to eliminate duplicate data entry and enhance case progression.

Much of the work carried out at Harvey Howell Solicitors is administrative, painstaking in character and necessitates heavy document production. Where previously these processes were handled manually, staff will now benefit from Proclaim’s fast and effortless document production, meaning at the start of a case all relevant letters and forms will be generated automatically via a single mouse click, saving the team hours of administrative work.

Additionally, Proclaim’s feature-rich financial accounting and practice management toolset will provide an overview of the firm’s operations, as well as a comprehensive set of reports, ranging from fee earner analysis to monthly budgets.

Gareth Howell, Chief Executive at Harvey Howell Solicitors, comments:

“We pride ourselves on providing a dedicated and professional service and as our client base is continually expanding, it became apparent our manual system was no longer fit for purpose.

“We want to spend our time giving closely trusted specialist advice to our clients at the best possible value, and once implemented, Proclaim will allow us to concentrate on these important aspects, whilst keeping our administrative costs to a minimum.”




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“You’ll never believe what I just heard about the RTA portal”

Since I blogged last month about how much work the government still has to do on getting its various civil justice reforms in place for next April, I have heard more and more rumours of a delay.

Unlike some rumours I hear, however, and I hear a lot about all sorts of things in this job, there is no great consistency. Some think just bits will be delayed, others that there will be a further review of the reforms and a few (perhaps out of hope) that parts of the package are going to be kicked into the long grass.

What we do not know yet is whether the new ministerial team at the Ministry of Justice (MoJ) will seek to do anything differently – no sooner do they get their feet under the table than they are off to their party conference (the new civil justice minister, Helen Grant, is not yet giving interviews); the officials handling the reforms, of course, have not changed, although I hear that they fully recognise the uphill challenge they face in being ready for April.

Though there are still holes to be filled, the sense I get is that the Jackson reforms are largely on track to happen next April as planned – to judge by his reputation, one has to expect that new Lord Chancellor Chris Grayling will be keen to be seen cracking down on the compensation culture.

The update slipped out by the Ministry of Justice last week – which was an odd way to make some significant announcements for practitioners on the shape of the new regime – implied that progress is being made.

My understanding is that the part of the reforms most under threat is the extension of the RTA portal both vertically and horizontally; not because of any change of heart at the MoJ, but simply because the technology may not be ready in time. For the time being, the people behind the portal are staying schtum, but I have yet to hear anybody predict that it will be ready in time. At the same time, I believe that the initial timeframes RTA Portal Co provided on how long it would take to deliver the extensions (a year for vertical, two and a half years for horizontal) have been scaled back.

As for new fee levels for the RTA portal, there seems to be a widespread assumption that it is going to be £600 but no word has been heard. The consultation on this has not exactly been of the highest standard.

More broadly I remain sceptical that the portal is in a good enough shape, two and a half years after launch, to be rolled out. Half of all claims that start in the portal then fall out; within this we have seen the emergence of ‘The 400 Club’ – solicitors who submit claims that are (let’s be polite) of dubious merit, receive their £400 stage-one payment, and then drop them. This hardly looks like a scheme which, while good for those cases which pass all the way through it, is ready for expansion.

That was also the conclusion of Professor Paul Fenn, who said in July – in a report commissioned by the Ministry of Justice, lest we forget – there are problems with the operation of the portal that require further study before it is extended.

As for the small claims limit, who knows? One stakeholder tells me that the consultation is constantly two weeks away; if the MoJ is to provide the full 12-week consultation period, I can’t see how it can then digest the responses, produce a consultation response, draft new rules of court (assuming the limit does change) and implement them by April.

We remain in limbo – let’s hope things become clearer over the next month. But in the meantime, don’t believe all the rumours.

 




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Neuberger: litigation funding is not without risks

“Quick and rough justice” may be a better solution for relatively small claims than invoking the full force of the Civil Procedure Rules and requirements such as disclosure and cross-examination, the president of the Supreme Court has suggested.

Delivering Harbour Litigation Funding’s first annual lecture in London – ostensibly charting the history of barretry, maintenance and champerty to litigation funding – Lord Neuberger expressed concern over access to justice for small claims where legal aid has been withdrawn and the economics do not work for conditional fee agreements (CFAs), damages-based agreements (DBAs) or third-party funding.

He said the responsibility for addressing the problem does not just lay with the government: “All those involved in the legal system, that is litigators and judges, have a vital role to play in improving access to justice. And that means cost-effective justice. The reforms propounded by both Woolf and Jackson are based on the need for proportionality. So far as is consistent with it being even-handed, principled, and clear, justice must be practical and realistic…

“Quick and rough justice is better than no justice, and for many people with relatively small claims, no justice may be all that is on offer, unless one is prepared to take a disproportionate risk. And, in ordinary cases, quick and rough justice, whose costs are commensurate with the issues involved, may actually mean better justice than would be achieved by incurring cost and delay by invoking the full force of the Civil Procedure Rules.”

Echoing comments he first expressed more than a year ago, the judge continued: “Disclosure and cross-examination may alter the outcome in a few cases, but I do wonder how cost-effective they are in the great run of average cases in which ordinary citizens are involved. But these general comments are much, much easier to express than they are to put into effect.”

On litigation funding, Lord Neuberger said the original, medieval rationale for maintenance and champerty – as a means to help secure the development of an inclusive, pluralistic society governing by the rule of law – had turned full circle and “the exact reverse of the prohibition is justified for the same reason”.

He recognised that it is still early days for the Association of Litigation Funders and said developing and promoting any form of litigation funding is “not without risks”, such as being used to bring unmeritorious claims in the expectation that, once the opposing side is aware of the existence of funding, they are more likely to be brought to settle in order to buy off the claim.

“The problems which arose after the 1999 [Access to Justice] Act’s amendments to CFAs could be replicated if less than scrupulous funders provide funding… The ethical pressures on lawyers to which any of these funding arrangements may give rise must also be acknowledged. The pressures will presumably be heavier with CFAs and DBAs where there is a real opportunity for conflict of interest for the lawyers, as they have a financial stake in the outcome of the litigation concerned…

“Third party litigation funding does not give rise to such problems, but the commercially driven pressures from expert serial litigation funders on lawyers could be significant.”




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Insurance Services Office (ISO), a leading provider of personal injury claims solutions, has announced that insurethebox, the UK’s leading provider of telematics car insurance, has selected ISO Claims Outcome Advisor (COATM) and the ISO MoJ solution to help manage its motor personal injury (PI) claims. The level of data provided by ISO’s management information system combined with the data collected from insurethebox’s Clear Box telematics device helps claims handlers gain valuable insight into each individual claim, allowing insurethebox to maximise the efficiency of its claims-handling operations.

Before the ISO implementation, insurethebox claims handlers dealt with motor PI claims by hand, putting heavy reliance on administrative staff to manually check the claims portal each day for settlement packs. COA helps claims handlers manage the complex medical, legal, and occupational issues presented by personal injury claims and helps ensure appropriate financial arrangements are agreed to and implemented. insurethebox now handles all interactions through ISO Claims Outcome Advisor, requiring less manual effort and increasing the speed and efficiency of settlements.

Brian Pearse, head of Claims Development at insurethebox, commented, “At insurethebox, we pride ourselves on the quality of our claims handling. ISO’s COA solution will help bring additional speed and transparency to the entire process.”

“Another significant element of the decision was the speed of implementation. Having had fantastic support and training from ISO, we were able to maximise our investment in COA from the word go,” continued Pearse.

ISO’s COA personal injury claims tool provides an application-to-application interface with the MoJ A2A system. It retains a complete, easily accessible record of all MoJ activity in the COA interactive management information dashboard and intelligently populates all live claims.

Joe Pendle, managing director, ISO, said, “At a time when companies are looking to optimise their investments in new technology and adhere to the MoJ timescales for motor PI claims, we’re finding the recurring fundamentals to be speed of implementation, increased visibility, and consistency. With COA, claims handlers have the ability to retain consistency and efficiency, and insurethebox’s implementation means that as they continue to grow, they will remain consistent in their handling of PI claims.”




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Transitional provisions: pre-April 2013 CFA

Qualified one-way costs shifting (QOCS) does not apply on appeal if it did not apply at first instance, Master Haworth has ruled in the Senior Court Costs Office.

Under transitional provisions, QOCS is retrospective save where CPR 44.17 applies. This reads: “This section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).”

In Landau v The Big Bus Company and another, the claimant signed a conditional fee agreement (CFA) in August 2011 to bring a personal injury claim against the defendants over an accident in 2009. This was rejected by the High Court in October 2013. Permission to appeal was granted and a second CFA entered into in November 2013, but in August this year, the Court of Appeal dismissed the appeal.

The appeal court referred to the SCCO the question of whether the costs orders made against the claimant in respect of each defendant were subject to QOCS. Master Haworth ruled that they were not.

He examined the wording of rule 48.2(1)(i)(aa), which applies to “[an] agreement… entered into before 1 April 2013 specifically for the purposes of the provision… of advocacy or litigation services in relation to the matter that is the subject of the proceedings in which the costs order is to be made”.

Favouring the submissions by the second defendant’s barrister, Jamie Carpenter of Hailsham Chambers, the master said: “It was clearly Parliament’s intention that a pre-commencement CFA entered into in respect of the ‘matter’ would disapply QOCS in any ‘proceedings’ arising out of that matter.” The rule could easily have been formulated in a different way if this was not the intention, he said.

In case he was wrong on that, Master Haworth went on to rule that an appeal does not constitute separate ‘proceedings’ in the context of section 2 of part 44.

The master expressed sympathy with the claimant’s predicament, as he did not have ATE insurance for the appeal, but said that “whilst it may be unreasonable, unfair and inconvenient to deny the claimant the benefit of QOCS in this case, for the reasons given on a true construction of the relevant provisions of CPR in this case, QOCS does not apply”.

Robert Marven of 4 New Square acted for the other defendant.




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Pulford: deal strengthens our group structure and abilities

Leading legal expenses and insurance add-on specialist ULR Additions – which last year set up an alternative business structure – has been acquired by investment company 116 Cardamon Ltd.

It follows the retirement of the founder and chairman of ULR, the trading name of MotorPlus Limited.

Chorley-based 116 Cardamon’s business strategy is to invest and develop in the claims management industry, and ULR joins a group that already offers medical reporting (through Speed Medical), rehabilitation services and document signing facilities. The group now has a turnover in excess of £60m.

ULR Additions currently works with over 100 insurance brokers, providing in-house claims management and first notification of loss services. It also has a portfolio of 50 insurance add-on products in the motor, commercial, landlord, household and more specialist areas of insurance. In 2013 ULR turned over £19.4m.

The Norwich-based company set up its ABS so it could continue to handle small-scale work in-house following changes to the provisions on in-house lawyers in the SRA Handbook, and also to provide the legal advice helpline the company runs.

Graham Pulford, 116 Cardamon’s group managing director, said: “The acquisition of ULR Additions not only strengthens our group structure and abilities, but it allows us to come together with an already successful firm and assist them in the future developments of the company.

“We can now focus on combining all of our resources and abilities where necessary to grow and prosper in the claims management markets and further afield.”

Rob Kay, chief executive of ULR Additions, said: “The industry we operate in is still evolving and becoming increasingly more competitive. This was therefore a necessary change to remain a fundamental market leader of quality products and services and to grow to the level we wish to.

“Graham and his team bring market knowledge and experience to ULR Additions and with the now enhanced infrastructure combined with the support they offer I am satisfied the new shareholders will create a very powerful and exciting future ahead for all. The priority for me now is to ensure we develop successfully and as ULR Additions and 116 Cardamon Limited share the same values and similar philosophies, I am confident in the success of the whole team.”

Speed Medical is one of the biggest suppliers of medical reports and rehabilitation services in the UK. It was established in 1998 and has over 150 members of staff.




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Asif Siddiq, practice manager at ODT Solicitors

Asif Siddiq, practice manager at ODT Solicitors

ODT Solicitors is implementing the Proclaim Practice Management Software Solution from Eclipse Legal Systems.

Based in Sussex with branches in Brighton, Hurstpierpoint and Haywards Heath, ODT Solicitors is a growing law firm specialising in Property Law and Civil Litigation. The firm boasts an enviable reputation for providing excellent service and value for money, to both private clients and commercial organisations.

The Proclaim Conveyancing Software Solution will be utilised firm-wide, ensuring a secure and consistent approach from all users. Eclipse will conduct a full data migration from the incumbent system, allowing the integrated Proclaim practice accounting and financial management toolset to be implemented together with the Proclaim Credit Control Centre module – boosting efficiency and providing detailed analysis of the firm’s operations.

ODT Solicitors will take the Proclaim Matter Management Solution to streamline their non-prescriptive Civil Litigation work. Effective risk management throughout the lifecycle of each file will be ensured with the adoption of the Proclaim Compliance platform.

Asif Siddiq, practice manager at ODT Solicitors, comments:

“Proclaim will be instrumental in achieving our goal of making the conveyancing process as quick, efficient and hassle-free as possible. With so many time consuming processes being automated we will reduce our clients’ costs without compromising the quality of the service we deliver. Proclaim’s inherent scalability and flexibility will prove invaluable as our operations and client base continue to expand.”

 




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Posted by Anthony Hughes, managing director, Jackson Hughes Consulting

Hughes: unified campaign needed

Hughes: unified campaign needed

We are told that there was another “high-level meeting” on 9 December between the government and senior members of the motor insurance industry. I’m getting a feeling of déjà vu as this all sounds very familiar and we know what happened last time such a meeting was held: insurers got just about what they asked for.

There has been a sea change since the Conservatives came to power, with insurers on the winning side of just about every argument. So will they win this one (the small claims and low-value whiplash reforms announced in the Autumn Statement) too, which many think will be the death knell for solicitors in the PI sector?

So what, if anything, can be done to challenge the proposals?

One thing is for certain – if any such opposition is to have a chance of success, then it must be very different to the LASPO experience, where the Association of British Insurers spoke with one voice for the insurance lobby, whilst their opponents proffered mixed messages from a disparate group. Moreover the legal challenges via judicial review failed spectacularly.

Sitting back and doing nothing is admitting defeat and that is not an option, but unlike LASPO I would suggest some change may have to be accepted to give any opposition credibility, as simply arguing for the status quo is unlikely to find favour.

Previous opposition has been based on the notion of access to justice and that got precisely nowhere. So what options are still open? Well, interestingly, credit hire – a real hobby horse for insurers and the ABI alike – could be a pointer. The only successful campaign I can remember in recent years was that run by Steve Evans and the Credit Hire Organisation in relation to the Competition & Markets Authority enquiry and the subsequent GTA (General Terms of Agreement) review. That was not based on points of principle but on hard facts and economic realities.

There is common ground if you look for it. For example, no one like fraud and nuisance calls. Let’s solve these problems, both of which will reduce frequency and claims costs, rather than taking the proverbial sledgehammer to smash the nut.

If the claimant lobby want to avoid drowning as the tide comes in, I would suggest:

  • A unified campaign with one voice which is well resourced and co-ordinated;
  • An economic approach which analyses the insurers data and challenges it;
  • Develop realistic ways of defeating fraud and proffer them as alternatives; and
  • A detailed analysis of insurer behaviour and the part they play in claims frequency is undertaken.



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Rolls Building

Rolls Building: new case doubles STS cases to two

The High Court has approved the first application to transfer a case started in the normal way into the shorter trials scheme (STS).

Mr Justice Birss said he believed that, once the case was transferred, it would be “the second case in the Rolls Building to be in the scheme”, with the other having gone straight into it.

Birss J said that under the STS, cases were managed by a docketed judge, with trials limited to four days and summary costs instead of costs budgeting.

“The initiative as a whole also seeks to foster a change in litigation culture: a recognition that comprehensive disclosure and a full, oral trial is often unnecessary for justice to be achieved.

“That in turn should improve access to justice by producing significant savings in the time and cost of litigation.”

Birss J said cases could be started in the STS by issuing them in the relevant court and marking the claim form, and transfer of cases was dealt with Practice Direction 51N.

The judge said it had been pointed out to him that none of the practice direction “state in terms that the court can transfer an existing case into the STS”, although “they could be said to presuppose that such an order can be made”.

Delivering judgment in Mosaic Home Ownership v Peer Real Estate [2016] EWHC 257 (Ch), Birss J said that the parties agreed that the case should be transferred and he believed “the court does have power to transfer an existing case into the STS and to transfer a case out of the scheme if it is within it”.

He said the overriding objective, to deal with cases justly and at proportionate cost, “expressly includes, as far as practicable: saving expense, dealing with cases in ways which are proportionate and allotting to a case an appropriate share of the court’s resources” under CPR 1.19(1).

“Having an appropriate case conducted in the STS is likely to reduce the cost to the parties and at the same time free up the court’s resources to make them available to other litigants.”

Birss J said the court’s power under CPR 3.1(2)(m) to take any step or make any order for the purpose of managing the case and furthering the overriding objective provided an “express basis” for the court to make the necessary order in this case.

He said that transferring a “proper case into the scheme is likely to save expense, deal with the case in a proportionate way and allot to it an appropriate share of the court’s resources”.

Construing practice direction 51N as a whole, the STS was clearly intended to work in such a way that cases could be transferred in and out, he found.

The STS in the Chancery Division was for “business cases in the widest sense”, as opposed to “purely private, non-commercial matters such as family property and family trusts”.

The case before him illustrated the “wide scope” of business cases, as it involved specific performance of a contract by which the claimant contended that the defendant agreed to sell a property in London.

“This is obviously a commercial property dispute, and as such falls well within the ambit of the STS. The fact that the claimant is a registered provider of social housing does not mean this case falls outside the scheme.”

The judge concluded: “I am satisfied that the court has power to transfer this case to the Shorter Trial Scheme and that it is an appropriate case to be transferred. Under the scheme this dispute will come on to trial faster and at a lower cost that might otherwise have been the case.”




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Edwards: eminent pool of experts

Edwards: eminent pool of experts

The Expert Witness Institute (EWI) has chosen Singapore as the location for its first international presence as it bids to increase the number of accredited expert witnesses in Asia and also open up more opportunities for UK-based experts.

The EWI is looking to create a network of expert across the region in a wide range of areas, including construction and finance.

Spearheading the new presence is corporate banking veteran Martin Edwards, who has spent over half of his 40-year career working in Singapore for a number of global banks, including JP Morgan Chase and Credit Agricole.

More recently he has been working for GBRW Expert Witness in Singapore, providing experts on banking, insurance and investment issues for the Singapore, Hong Kong and London markets.

Mr Edwards will also work with professional bodies to promote the benefits of being an expert witness and will develop an EWI training programme.

He said: “Using EWI’s knowledge combined with my local connections and experience, we expect to establish an eminent pool of experts to share their knowledge with lawyers across Asia.”

EWI chair Sir Anthony Hooper said: “This is an important strategic milestone for EWI as it approaches its 20th anniversary. Not only does establishing a presence in Singapore provide greater opportunities for our members in the UK to carry out work across Asia, it means that lawyers operating across the region can access a wide pool of accredited experts across many sectors.”

This latest development comes on the back of the EWI’s contribution to the first-ever European expert witness guide aimed at promoting consistent good practice amongst European experts. The Guide to Good Practices in Civil Judicial Expertise in the European Union was contributed to by 12 EU countries and was led by the European Expertise and Expert Institute.




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Whiplash: the fight goes on

Posted by Neil Rose, Editor, Litigation Futures

Just when claimant personal injury lawyers thought they were all but out for the count in the battle over whiplash reform, the transport select committee has offered an unexpected hand up from the canvas.

Today’s whiplash report could not have read much better for them; it might also come as a nasty surprise to the insurance industry, which has very much held the, shall we say, whip hand to date.

To me, the report identifies the key issues with admirable clarity and nails what I consider the main problem: the lack of proper evidence to underpin the government’s proposals. As I wrote when the consultation was launched last December, there are no reliable figures that show the extent of the problem. That is as true today.

I suspect many of us would instinctively agree with the general sense that there has been an increase in fraudulent claims thanks to all the activities of claims management companies and some solicitors in recent times (although is that just the propaganda talking?) but I don’t see how the government can turn the system upside down on the basis of a feeling in its collective water.

There may be times when government should act on a moral basis irrespective of the evidence, but this isn’t one of them.

On balance I would personally agree with the committee’s position against raising the small claims limit – I just don’t think the general public is ready to self-represent en masse in PI claims. And the committee highlights the obvious fallacy that using the small claims track will make it easier to challenge fraudulent claims, given that a fraud allegation will lead to the case being transferred to the fast-track anyway.

A more convincing argument is that fraudsters may not fancy the hassle and risk of having to go to the small claims court, but the danger that the majority of honest claimants could be similarly deterred surely outweighs that.

But it is important to stress that the MPs did not express an unequivocal, ‘no, never’ type of opposition to raising the small claims limit and in fact they made recommendations that would make the system work better if such a change happened.

So, what next? Sadly it doesn’t seem like we will see an end to the claim that the UK is the whiplash capital of Europe, even though the committee said the evidence did not prove (or disprove) this. That didn’t stop the Association of British Insurers trotting it out once more in the statement released in response to the committee’s report.

It is as if the ABI has its hands over its ears saying ‘I can’t hear you’ repeatedly because for once somebody who isn’t a claimant lawyer (they don’t count) has dared to contradict it.

More important, of course, is whether the Ministry of Justice is listening. Certainly the voices of MPs will be harder for the government to dismiss than those of claimant lawyers, but the committee notes that some of its previous recommendations in this area have been ignored.

Claimant lawyers can enjoy a rare good day, but one successful battle still leaves them a long way from victory in the whiplash war.




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A wig-tastic day for 100 advocates

Exactly 100 advocates – made up of 95 barristers and five solicitors – were today named in the annual silk round.

The number represents an increase on the QCs appointed in each of the last two years, and a significant increase in successful solicitor-advocates, of whom just eight were appointed in the previous five years put together.

There were 225 applicants – again higher than in the previous two years – of whom 162 were interviewed. Each applicant was considered against five competencies: understanding and using the law, written and oral advocacy; working with others, diversity and integrity.

Helen Pitcher, chairman of the selection panel, said that “almost all” of those who had been unsuccessful were “nevertheless highly respected and effective advocates”.

The body that organises the silk round, QC Appointments, emphasised the greater diversity of this year’s QCs compared to those in 2012-13, appointing:

  • 18 of the 42 women who applied (14 in 2012-13);
  • 13 of the 32 applicants who declared an ethnic origin other than white (three in 2012-13);
  • 11 of the 43 applicants aged over 50 (five in 2012-13). The youngest successful applicant this year is 36 years-old and the oldest 68;
  • Two employed advocates of the six who applied (none in 2012-13); and
  • Five of the eight applicants who declared a disability (none in 2012-13).

Seven solicitor-advocates applied and five were appointed. All are international arbitration specialists from top City firms: Nic Fletcher (Berwin Leighton Paisner), Matthew Gearing (Allen & Overy, Hong Kong), Paula Hodges (Herbert Smith Freehills), Constantine Partasides (who it was reported this week is leaving Freshfields Bruckhaus Deringer to co-found a niche arbitration practice) and Matthew Weiniger (Herbert Smith Freehills).

Ms Pitcher said: “The selection process is a rigorous and demanding one. We collect confidential assessments from judges, fellow advocates and professional clients, who give freely of their time to provide vital evidence about an applicant’s demonstration of the competencies.

“The best applicants are then interviewed by two members of the panel, following which the whole panel discuss all the evidence on each applicant.”

The new QCs will formally become silks when they make their declaration before the Lord Chancellor on 14 April. See the full list here.




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Jackson: serious lacuna in the rules

Lord Justice Jackson has urged the government to press ahead with introducing fixed costs in non-personal injury fast-track cases, and for work to begin on fixed costs for matters at the lower end of the multi-track.

He has also expressed concern about regional court centres and county courts missing out on government funding to upgrade their IT infrastructure.

In a speech to the Costs Law And Practice conference organised this week by Class Legal, publisher of the Costs Law Reports, the author of the civil justice reforms welcomed yesterday’s introduction of fixed costs for medical reports in whiplash cases, and hoped the regime – with “any necessary adjustments” – would be extended to medical reports in other fast-track personal injury claims.

However, the failure to introduce non-personal injury fixed costs on the fast-track is “highly unsatisfactory”, he said, because “they are not subject to any effective control”.

He said the Ministry of Justice supports the principle but that other matters are taking priority.

“Of course, the manner in which hard-pressed government departments prioritise their work is a matter for them. Nevertheless I do stress the importance of completing the task of fixing all costs in fast-track cases.

“So long as some of those costs remain at large, there is a serious lacuna in the rules. Individuals of modest means and small businesses are the principal users of the fast-track. Their needs should not be overlooked or relegated to the back of the queue.”

Jackson LJ said the time had now come “to take stock and to develop a scheme for fixed costs in the lower reaches of the multi-track”.

He continued: “Such a scheme may be particularly welcome now, because it will dispense with the need for costs management and costs budgeting in cases valued at less than £250,000.” He called for the Civil Justice Council’s costs committee – or if necessary a separate working party chaired by a judge – to take it forward with a deadline for completion.

Jackson LJ also cited the president of the Association of HM District Judges as saying there was “overwhelming support” for both extensions of fixed costs.

On other issues, the judge said his “strong impression” was that as practitioners become familiar with costs management, opposition is receding and support gathering momentum.

He quoted the chair of Birmingham Law Society’s dispute resolution committee as saying that the heads of litigation at the city’s major firms “all think that costs budgeting and costs management are helpful”.

But while he welcomed the government’s £375m investment in the courts for five years from 2015, he said the prospect of the county court and regional court centres continuing to operate a paper-based system for some years to come – especially at a time when staff numbers have been reduced – will hamper the delivery of justice.

While emphasising that he was not entering the political arena, Lord Justice Jackson concluded: “There is always a tendency to criticise things that are going wrong and to ignore things that are going well. I do not fall into that trap. I applaud the achievements of the district judges and circuit judges who have worked tirelessly to make the 2013 civil justice reforms work effectively. Also I welcome all of the new investment being made in the court system, especially the Rolls Building jurisdictions.

“Nevertheless I have a real concern that – despite the best efforts of the Ministry of Justice and HM Courts and Tribunals Service – the county courts and the regional court centres are slipping through the net.

“I therefore invite consideration as to whether the resources of those courts should now be strengthened rather than further reduced. As part of the overall reform programme, it is essential that civil justice receives its fair share of the available funding.”




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Rowley: taking away cost uncertainty

Irwin Mitchell has teamed up with Allianz Legal Protection to launch ‘Support4Dispute’, a bespoke funding solution to support insolvency practitioners (IPs) manage the costs and risks of litigation.

Under the terms of the conditional fee agreement that forms part of the package, Irwin Mitchell’s legal costs and success fee is only payable by IPs once a cash recovery is made from the opponent.

The after-the-event (ATE) insurance provided by Allianz is a staged premium facility linked to the amount of damages recovered, and capped to enable IPs to retain a greater share of any recovery made. In addition, the premium is deferred until the case is settled, and only payable on successful cases.

John Vickery, restructuring and insolvency partner in Irwin Mitchell’s Manchester office, said: “This product has been developed specifically for the IP sector and addresses all of the financial issues relating to why they may be reluctant to pursue litigation claims.

“Quite simply, the Support4Dispute service that we provide takes the gamble out of insolvency litigation and enables IPs to launch legal actions far more easily following an insolvency, without having the risk of having to pay their own legal fees or a hefty ATE insurance premium where no actual recovery is made or the opponent’s legal fees if the litigation is unsuccessful.”

Steve Rowley, business development manager at Allianz Legal Protection, said: “We worked with Irwin Mitchell over several months to jointly develop a product specifically aimed at addressing the risks and issues faced by insolvency practitioners.

“Using our combined knowledge and expertise we have created a solution that meets the needs of insolvency practitioners, and takes away the cost uncertainty faced when bringing legal action against creditors.”




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City lawyers: ability to recover actual costs appeals to overseas litigants

City lawyers have warned Lord Justice Jackson that imposing fixed costs on commercial litigation would encourage “England’s competitors” at a time of uncertainty caused by Brexit.

The City of London Law Society (CLLS) said successful parties should not be penalised by recovering a lower proportion of their costs.

Further, the current system was internationally popular and judges already had “extensive powers” to control litigation.

Jackson LJ was asked by the senior judiciary in November to investigate options for the extension of fixed recoverable costs and report back by the end of July this year. This followed a speech he made in January 2016 about fixing costs for all civil claims worth up to £250,000.

The CLLS litigation committee said in its response to his call for evidence that fixed costs would not compensate successful parties for the “actual costs” of litigation, but “provide for the payment of a sum, selected for policy reasons, in lieu of genuine costs shifting”.

The committee went on: “The successful party will still be required to pay its lawyers for the work needed to pursue the litigation, the fees for that work being determined in the highly competitive legal market place.

“All that will change in practice is that the successful party will recover a lower proportion of its costs.

“The civil legal system should, in the committee’s view, aspire to promote access to justice, not to impose costs on successful parties forced into court in order to vindicate their rights.

“If the rules governing litigation require disproportionately high legal costs to be incurred, it is a strange policy choice to impose those costs on the party with substantive merit on its side.”

The committee described litigation as “seldom optional or undertaken with enthusiasm”, but said the ability to enforce rights was “fundamental to trade and commerce”.

The committee said one of the reasons for the international popularity of the English and Welsh legal system was the ability to recover actual costs.

With the system “facing questions, whether justified or not, as a result of Brexit”, the CLLS said it would be concerned at any steps, such as fixed costs, that might “offer encouragement to England’s competitors”.

The committee argued that judges already had “extensive powers” to control the cost of litigation. “This might mean exercising more robustly powers to strike out claims or grant summary judgment rather than allowing manifestly weak or obscurely pleaded cases to proceed to trial.

“It might mean real consideration of the scope of disclosure rather than defaulting to standard disclosure (a problem that Lady Justice Gloster is currently addressing) or it might mean judges not being content merely to reduce the total set out in a draft costs budget without also adjusting the steps required in the litigation.”

The CLLS warned of “perverse results” if there was “inequality of arms” between the parties and richer litigants could pursue cases in an “extravagant manner” to force the opposition to abandon their claim or defence.

The committee said that determining costs by reference to only one factor, the sum claimed, would “randomise recoverable costs” and “potentially cause injustice”.

For example, a claim for £25m might require short pleadings, minimal disclosure and a small number of witnesses, or “a million pages of disclosure”, numerous interim applications, large numbers of witnesses and a 40-day trial.

The CLLS said linking proportionality only to the sum claimed ignored the “main factor” behind any decision to pursue litigation – an assessment of the prospect of success against the potential return. This could discourage claims from being pursued, “frustrating” legal rights rather than vindicating them.

The committee said costs in the current system were “seldom indeterminate” and “experienced solicitors” could estimate costs to an “acceptable level of accuracy”.

Even with fixed costs, there would still be uncertainty as to when, in the words of Jackson LJ in January 2016, work was ‘substantially started’ or ‘completed’ or when it involved ‘exceptional complexity’.

The fact that few judges “relish” costs budgeting was an “inadequate reason” to introduce fixed costs, and there were “numerous” problems about the cost of interim applications, summary judgment or cases struck out.

There were further questions, the CLLS argued, on methodology – for example, whether there were fixed bands or a fixed sum plus a percentage of the sum claimed.

Despite all its objections, the litigation committee admitted that a “small minority” of its members were “more sympathetic to the aims of fixed recoverable costs”, on the grounds of greater certainty.

However, even they believed there should be a pilot scheme, possibly in the Mercantile Court, to assess “both whether there is demand for fixed recoverable costs and how it would work in practice.”




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Ward: Accommodation claims complication

Defendants are dragging their heels in anticipation of the discount rate increasing, a medical negligence specialist has complained.

Trevor Ward, a senior solicitor at specialist Southport firm Fletchers, also warned fellow claimant lawyers that it would be “extremely dangerous” for them to settle at any rate other than the current -0.75%.

Last September, the Ministry of Justice announced that it was to change the basis on which the discount rate was calculated, with the rate set by reference to ‘low risk’ rather than ‘very low risk’ investments as now.

This would likely mean adjusting the current rate of -0.75% to somewhere between 0% and 1%, it estimated.

Mr Ward said there was “a huge level of uncertainty” around when the new rate would be introduced and what it would be.

“The assumption of a 1% rate is just that – an assumption. It shouldn’t be impeding settlements or delaying negotiations from going ahead, even if case trials are set to take place in 2019 or later,” he said.

“The rate is still -0.75% until stated otherwise. Yet, we’ve been working on cases that are due to settle within the next year or two, and we’ve seen defendants dragging their heels in order to delay negotiations in case the rate changes before the case goes to trial.

“It’s extremely dangerous in my view for claimant advisors to settle at any rate other than -0.75% – this could be negligent practice and could compromise the 100% compensation principle, which the government has so far indictated an intention to retain.”

Mr Ward added that accommodation claims formed an intrinsic part of the equation and had to be factored in to how the new rate was determined.

“The current -0.75% would actually lower the amount that claimants receive to cover their housing costs – compensation is usually determined based on capital use over their lifetime, so they could actually end up owing money in theory.

“In these cases, the 1% rate may actually work better than -0.75%, which makes it even more difficult to decide on one rate that can be applied fairly to all accident claims on the current law.

“The government needs to give serious consideration as to how these claims are dealt with in order to come up with a rate that will ensure all claimants receive a fair settlement that meets their individual life-long requirements one way or another.”




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Bar: excluding barristers will have negative effects

The Ministry of Justice (MoJ) is storing up even more trouble in portal and fast-track cases by cutting out barristers, the Bar Council and Personal Injuries Bar Association have said.

The pair argued that instead of abolishing the disbursement basis for paying the Bar – which it said was being done without consultation and contrary to Lord Justice Jackson’s recommendations – the MoJ should introduce a low fixed-fee system for instructing barristers that would cover advice on liability, quantum and particulars of claim.

They put forward figures ranging from £125 for handling the allocation questionnaire for RTA cases worth £1,000 to £3,000, to £350 for particulars of claims in employers’ and public liability cases worth £10,000 to £25,000.

The MoJ consultation on the proposed fixed recoverable costs makes no provision for counsel at all, and also ignores Lord Justice Jackson’s proposal that a lump sum should be added to the costs in every fast-track case to cover the average cost of solicitors instructing the Bar: £110 in RTA, £225 in employers’ liability and £300 in public liability.

In their response to the consultation, the two bodies said: “Any suggestion that solicitors will share their (very low) fixed fee with the Bar is misguided. They will not do so on the fast-track (or indeed any expanded portal) any more than they currently do under the existing portal system.”

They argued that excluding claimants from access to the Bar will have “a negative effect upon access to justice, will place excessive burdens upon the court system, will result in under-settlement of claims, will cause a rise in professional negligence claims against solicitors and will place further strains upon the Courts Service, the National Health Service and the welfare system.

“It has been the government’s stated objective to reduce the cost to insurers by capping or reducing legal fees. This objective is best achieved by involving the Bar (at fixed cost). This will prevent unmeritorious, unfocussed and exaggerated claims from proceeding.”

The response argued that the low level of the MoJ’s proposed costs “will obviously mean that solicitors will either reduce their standard of service or utilise the lowest grade of fee-earner to conduct litigation”, but having a “low fixed-fee system for instruction of the Bar” would militate against these problems.

More broadly the two bodies argued against the proposed costs, saying they will deny access to justice for injured people. “The principle behind the proposals is commoditisation of work which imposes fixed prices and abolishes hourly rates. The Bar Council and PIBA accept this principle, but it can only work if the fixed process allows the lawyers involved to provide a reasonable professional service to the injured person taking into account the issues raised by insurers and the procedure for achieving resolution.

“The MoJ’s proposed fixed fees are being imposed without any substantive evidence of the average number of hours of work needed to complete each type of commoditised case or of the proposed reasonable average hourly rate.”

They called for a fuller review of the present portal, which they described as “unfit for purpose”.




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Ministry of Justice: “appropriate” new threshold

The Ministry of Justice (MoJ) yesterday announced plans to increase the threshold for the court and tribunal fee remission scheme to around the level of the national living wage (NLW).

The move was specifically aimed at alleviate the impact that fees have had on the volume of employment tribunal (ET) claims, but will apply to all civil and family cases.

The long-awaited review of the impact of fees for ET claims showed a “sharp, significant and sustained fall” in claims, alongside a significant increase in the number of people who have turned to Acas’s conciliation service.

Nonetheless, the MoJ acknowledged that some people – it estimated between 3,000 and 8,000 – who were unable to resolve their disputes through conciliation then did not go on to issue proceedings because they said that they could not afford to pay.

It said: “We do not believe, however, that this necessarily means that those people could not realistically afford to pay the fee. It may mean, for example, that paying the fee might involve having to reduce other areas of non-essential spending; or that they were not aware of the help available, or thought they might not qualify for help, under the Help with Fees scheme; or they may have been unaware of the Lord Chancellor’s exceptional power to remit fees…

“While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so… Nevertheless, the review highlights some matters of concern that cannot be ignored.”

It said the “best way” to address the issue of some people being discouraged to pursue action because of fees was to extend access to the support available under the Help with Fees scheme.

This would be to adjust the income, rather than capital, test for fee remissions (anyone with disposable capital of £3,000 or more is not eligible). “We believe that this is the fairest approach because it would benefit people on low incomes, but whose income is just above the current threshold, and are therefore currently expected to pay at least something towards the fee.”

The MoJ proposed raising the gross monthly income threshold for a single person from £1,085 to £1,250, meaning anyone earning less than this would be fully exempt from fees.

This is approximately the gross monthly income that a single person over the age of 25 working full-time for the NLW (40 hours per week at a rate of £7.20 per hour).

“We believe that this is an appropriate level at which to set the threshold for a full fee remission above which the person is required to make a contribution to the fee.”

The same differentials as currently apply for couples (an additional £160 of gross monthly income per month) and for those with children (an additional £245 of gross income per month per child) would be maintained.

“Although our proposal is based on setting the threshold at the level of a single person earning the NLW, we are not proposing to increase it annually in line with increases to the NLW. This is consistent with our approach to fees generally, which are not subject to annual increases. Instead we propose to keep the level of fees and remissions in the ETs under regular review.”




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Smith: demand for one-stop shop

Burford Capital, the world’s largest litigation funder, has announced three new senior hires in its UK after-the-event (ATE) insurance arm and Litigation Futures sponsor Firstassist Legal Expenses, including a former partner at Nottingham law firm Freeth Cartwright.

Mark Thomson joins from Freeths, where he was a commercial dispute resolution partner, to become a litigation funding manager. He is noted for his expertise in commercial litigation, professional negligence and insurance work.

The new head of operational underwriting is Mike Payne, who has over 20 years’ experience in the London insurance market and has a particularly strong background in the legal sector, having worked as head of business development for a large national law firm for some years.

Louise Smith has joined as product development manager. She trained as a solicitor and worked in private practice as a civil and criminal litigator after qualifying. She has since undertaken roles in both claims management and product development, and has extensive experience across all areas of the legal expenses market.

Firstassist managing director Peter Smith said:  “We are delighted to welcome Mike, Louise and Mark to the team. These are extremely talented individuals who will, doubtless, make a real difference to our business and our clients.

“The UK litigation landscape is changing fast but there is no doubt that the need for greater certainty on costs is here to stay. The demand for a one-stop shop to assist with all aspects of legal expenses insurance and funding is greater than ever and we look forward to helping solicitors and their clients in these exciting and challenging times.”




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Driverless cars: lawyers will need training

Driverless cars: lawyers will need training

The introduction of driverless cars is set to change the shape of defendant legal practice, leading firm Kennedys has said.

It also called for compulsory car insurance to be widened to include product liability to cover the introduction of driverless cars.

Responding to a Department for Transport consultation on how to support the development and use of the new technology – which had a particular focus on the insurance implications – Kennedys said it was too early to redesign insurance law to take account of driverless vehicles, and that amending the Road Traffic Act 1988 to extend compulsory cover to product liability would suffice for now.

But the firm predicted: “In time, highly or fully autonomous vehicles will be considered a different class of vehicle requiring additional compulsory cover. It is most likely that one go-to entity will provide all necessary cover – rather than a set of entities.” The requirements would be in a single piece of legislation, it thought.

Looking at how driverless cars might impact defendant legal practice, Kennedys said it would need to invest in capabilities to better understand the technology, and training for its motor lawyers in other areas of insurance litigation – most notably product liability law – so they could deal with “new and potentially complex liability arguments”.

“In turn, our bills to clients will contain higher amounts for disbursements for use of engineers and other experts – required to interpret in-car and other data in ascertaining share of liability between driver and vehicle manufacturer and others when collisions or damage occurs.”

The firm said it anticipated, in time, far fewer lower-value third-party claim instructions.

“The focus is likely to shift to a smaller subset of more serious injury road accidents (which will fall in frequency too) and an increase in related litigation between AVT [automated vehicle technology] motor manufacturers, software houses and manufacturers of autonomous systems, as well as manufacturers and maintainers of connected road systems and street furniture.”

With regard to those lower value claims that are pursued, the response said there was no reason why the online claims portal could not be adapted to accommodate RTA claims that involve a vehicle with AVT.

It said: “The defendant’s default positon would be that the portal should continue to apply to all low value RTA claims (up to £25,000) to try to pre-empt any mischief by claimant firms to remove such claims from the process for cost purposes.”

More generally, Kennedys backed the government’s intention to keep regulatory reform under constant review as the technology evolves.

It said: “Providing for an ongoing and agile regulatory review means that, as far as is possible, long-term technological change is anticipated. This will ensure that future regulatory change is seamless and occurs only when necessary to reflect a major leap in technological advancement.”

The firm said it would encourage the formation of an industry working group of manufacturers, insurers, lawyers and major fleet operators. “The objective of such a group should be to reach a consensus on what type of vehicles are likely to arrive on the UK market over the next 10 years. This would greatly assist the government with regulatory planning.”

Niall Edwards, head of the motor insurance group and partner at Kennedys, said: “The government wants the UK to be at the forefront of this emerging technology and is taking a sensible approach to regulatory reform – too much, too soon could be damaging. This is an exciting time and promises in the long run to change the shape of the motor industry – and those who advise them – forever.”


Blog

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