After The Event Insurance Product Spotlight: Bespoke ATE Insurance

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Bespoke ATE Insurance

As well as a range of ‘off the peg’ solutions, we also offer Bespoke After The Event Insurance policies for all types of Personal Injury Claims.

We pride ourselves on our understanding of the needs of both the solicitor and the modern law firm and it was with this in mind that we decided to offer a bespoke solution for those occasions when a standard ATE policy just doesn’t fit the bill. We understand that from time to time the necessity for an ATE policy on a particular claim may not seem apparent at the outset or simply gets overlooked.

However, you may then have found yourself regretting this decision at a later date when proceedings are issued and concerns regarding adverse costs and risk of disbursements crop up. Of course there are also cases that crop up from time to time that are complex in nature and are clearly a multitrack matter from the outset. It is for use in circumstances like these that we created our bespoke ATE policies.

To apply for a bespoke policy, all we require from our panel members is that you complete a simple on line form. We’ll be able to provide with a quote within 24hrs.

We look to provide our clients with After The Event Insurance products that both cost effective and require minimal administration.

Main benefits of Bespoke After The Event Insurance

  • Appropriate level of Indemnity to fit the case
  • Lowest simple non staged premiums available on the market
  • Quick and easy online application
  • Application assessed and decision made with 24hrs
  • No application fees required
  • Assessment of file not necessary
  • No prospects of success test
  • Claims paid in full and within 7 days on all After The Event Insurance policies
  • Cancellation allowed
  • ATE Insurance Premiums are deferred to end of case
  • All After The Event insurance policies have Part 36 cover as standard
  • Minimal Reporting on all ATE Insurance policies
Posted in After The Event Insurance, After The Event Insurance Products

“Exaggeration won’t matter – will it?”

Robin Selley

After a few helpful recent cases for Claimant’s on the issue of “fundamental dishonesty” the Supreme Court recently gave its decision in the case of Hayward v Zurich Insurance plc [2016] UKSC 48.

The Claimant had suffered injury during the course of his employment and took the opportunity to grossly overstate the extent of his disability, claiming more than £400,000 from his employer’s insurers.

Zurich, having admitted primary liability for the accident, suspected that the Claimant might be trying to pull a fast one and did plead that to be the case in terms of the extent of injury and subsequent loss. However, the insurer chose to settle the claim for a fraction short of £135,000 even though they had surveillance evidence at that time.

That was not the end of the case as we know.

The insurer was made aware that the Claimant had been lying all along and had fully recovered from his injuries a year before settlement was agreed. As such they sought to undo the settlement on the basis of fraud and have the award repaid to them. At trial, the Judge decided that the settlement should be set aside and repaid, awarding Mr Hayward £14,720.  However, the Court of Appeal overturned that decision and held that, given Zurich was aware of the fraud at the time of settlement; it could not be set aside once proof of the fraud was obtained.

Zurich appealed to the Supreme Court and in a landmark judgment for Defendants, the Supreme Court unanimously decided that where an insurer suspects fraud but has still chosen to settle a claim, they would be entitled to set aside the settlement under the tort of deceit, if they subsequently obtained proof that it was in fact fraudulent.

This follows hot on the heels of the decision in Versloot Dredging BV & Anor v HDI Gerling Industrie Versicherung AG & Ors [2016] UKSC 45 of the ability to decline payment on the basis of collateral lies told by the assured, although the lie in the Versloot Dredging case didn’t affect the value of the claim, so one not to be confused with Hayward.

Yes this case opens for the door for Defendant’s to revisit old settled cases that they may have had strong suspicions about. But could that door not open both ways, where Claimants have had strong suspicions that Defendants have acted fraudulently? The difficulty there of course is that one camp has much deeper pockets and can afford to take the point further, the other most probably can’t.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

‘Fightback’ in Fundamental Dishonesty Claims: An After The Event Insurers View

Linsey Carroll

Fundamental Dishonesty and ATE Insurance

The definition of ‘Fundamental Dishonesty’ is a term which has caused difficulty for both claimants and defendants since the advent of s.57 of the Criminal Justice and Courts Act 2015.  In the past year, both claimants and defendants have seen rulings from the Court in their favour, leading to increased confusion as apposed to clarity.

However, the Court of Appeal has recently assisted the Claimant’s cause, by providing support to a previous ruling in a lower Court, which held that the failure of a claimant to prove their case does not automatically mean that the claim was Fundamentally Dishonest, stripping the Claimant of its QOCS protection.

Whilst the initial case of Da Costa in the County Court did not directly deal with the finding of Fundamental Dishonestly and the loss of QOCS protection and After The Event Insurance, it still had relevance in relation to the argument.

In Da Costa, Lady Justice Black said: “The first thing to say is that a finding of fraud does not inevitably follow from a rejection of an accident claim as not proved. There may be many reasons why the claim is not proved other than that it has been fraudulently manufactured.

The words of Lady Justice Black have now been expanded upon in the Court of Appeal Case of Meadows v La Tasca (as yet unreported).

The claimant in the matter was initially unsuccessful in her tripping claim against the Defendant.  The defendant made an application asking the Court to find the claimant Fundamentally Dishonest, and upon reviewing the application and evidence, District Judge Khan concurred with the defendant and made a finding of dishonestly against the claimant.  As a result, QOCS protection was removed and the Claimant was ordered to pay the defendant’s costs in the sum of £7,210.00.

District Judge Khan ruled that he had not believed what the claimant or her witness had said had happened, describing their evidence as “riddled with inconsistencies”.

He said: “In those circumstances, it is difficult to see how this is not a dishonest claim. This is not, for example, a claim where there has been a misremembering of key events, or some confusion or lack of clarity in relation to dates, events, premises or the like. The effect of the inconsistencies… was such that I simply did not believe what Miss Meadows said to me or Mrs McGrath said to me.”

The claimant appealed this ruling, and after hearing evidence on behalf of the claimant, His Honour Judge Hodge QC overturned the finding of Fundamental Dishonesty made by Deputy District Judge Khan..  He said that;

‘It was not appropriate for the district judge to find that the accident had not happened in the circumstances described. He should have limited his decision… to a decision simply that the claimant had not made out her case on the evidence before him.’,  and went on to say that: ‘The inconsistencies and curiosities highlighted by the judge did not entitle him to go further and to find that the claim had been fabricated, and thus was fundamentally dishonest.’

The costs order against the claimant was reversed and the defendant ordered to pay an additional £12,500 for the costs of the appeal.

Claimant solicitors and After The Event Insurance providers have indicated that they are seeing a worrying trend of defendants alleging Fundamental Dishonesty where a claimant simply fails to prove their claim at trial, and this may lead to increased costs if claimants seek to appeal these findings.  Reducing the costs of litigation was of course something which the reforms of Lord Justice Jackson and the introduction of QOCS had hoped to achieve.

Given the latest Judgment in Meadows, we as ATE Insurance providers feel that there appears to be some respite afforded to the claimant, from what seemed like the latest line of attack from the defendant.  The battle may have been won by the claimant for now at least, but the war continues…

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

“Whiplash” Numbers in decline

Robin Selley

It has been reported recently in the legal press that the number of personal injury claims being made is starting to decline, or as one report put it, they are in “freefall”. If taken at face value, these reports would suggest that the end of the PI market is nigh (to the huge joy of the insurers and government) but is it right to take such a pessimistic view at this stage?

First off, the National Accident Helpline Group reported to the London Stock Exchange that falling case numbers in its PI unit were ‘in line’ with the company’s predictions.

Meanwhile, new figures obtained by the Association of Personal Injury Lawyers (APIL) reveals that the government’s compensation recovery unit recorded 335,365 claims in 2015/16 where the compensator had used the term ‘whiplash’ to describe the injury, a fall of 11% in the number of “whiplash” claims recorded for the previous year. The figures obtained show a steady decline in numbers from 2012/13 but is that not surprising, given the rush to acquire claims prior to the 1st April 2013 in any event?

So is it really surprising that these figures are now starting to show a drop in the numbers as the Personal Injury sector still await the publication of a consultation on further reforms to low value “whiplash” claims, or is this just a natural correction post Jackson?

Statistics released by the HSE show that the number of workers fatally injured in 2015/16 (144) is 7% lower than the average for the past five years (155). Over the latest 20-years there has been a downward trend in the rate of fatal injury, although in recent years this shows signs of levelling off.

There was bound to be a large increase in the number of claims recorded in the run up to the Jackson reforms and perhaps now we are seeing a levelling off across the personal injury sector, against a constant bombardment from insurers and Government seeking to prevent those genuinely injured,  having access to justice and redress.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

So, “When is it OK to tell a ‘collateral’ lie?”, asks an After the Event Insurance provider.

Robin Selley

A collateral lie, what exactly is it? It is an untruth, but one which does not affect the overall validity of the claim made, so said the Supreme Court in a case involved a Dutch cargo ship, which ran into difficulty after its engine room was flooded. The crew falsely said they could not investigate an alarm, because the ship was rolling in heavy seas. However, the accident was caused by bad weather, so this lie was irrelevant, it was ruled.

The judge at first instance found that the lies from the ships crew amounted to a “fraudulent device” and thus invalidated the claim. The Court of Appeal upheld the initial judgement, but that has now been overturned by the Supreme Court who found that it is OK to tell a “collateral” lie on an insurance claim. All interesting stuff to those who provide After the Event insurance.

In giving Judgment, Lord Mance said: “The critical point is that, in the case of a collateral lie….the insured is trying to obtain no more than the law regards as his entitlement, and the lie is irrelevant to the existence of that entitlement. Such a lie is immaterial to the claim.”

The implications of this ruling could be far reaching, affecting household, travel and motor policy claims.

On the subject of telling “lies” the thorny subject of “fundamental dishonesty” rumbles on. It would seem that Claimant PI practitioners are receiving correspondence from Defendant lawyers on a regular basis where this is raised, even in claims where liability has been conceded. Perhaps Defendants are raising “fundamental dishonesty” as a matter of routine, in the hope of capturing the minority of claims which are deemed to be “fundamental dishonesty”? Cast the net wide in the hope of capturing a dishonest claim. Maybe that approach is justified.

From an ATE insurance perspective, Defendants have been reluctant in the past to actively pursue such allegations as they know perfectly well that if such a finding of fraud is made, the Claimant will lose the benefit of ATE cover and the Defendant would be unlikely to recover any costs in any event. Instead, they tend to raise the argument, indirectly.

But disbelieving the Claimant does not mean a claim was fundamentally dishonest. Who says so? His Honour Judge Freedman does!

In the original fast-track trial of Nesham v Sunrich Clothing, the District Judge ruled that on the balance of probabilities the Claimant could not prove that the Defendant had breached the duty of care that was owed to him so the claim failed. QOCS should have applied but the Defendant then sought to accuse the Claimant of being a liar and that he was fundamentally dishonest.

It could be suggested that a losing party in a PI claim must have been lying. Lawyers will often find that parties give varying accounts of how an accident may have occurred. However, HHJ Freedman held on appeal that “merely because an account of an accident has been rejected does not, to my mind, equate to fundamental dishonesty”.

HHJ Freeman added “Up and down the country on a daily basis, judges are being asked to decide whose account of a road traffic accident is more reliable ….And it is the experience of everybody who litigates in this field that drivers involved in an accident will give different and contrary versions of accidents to the extent of not just which lane they were in, but where they came from, the route they had taken and so forth… which may not constitute dishonesty, far less fundamental dishonesty.”

The Defendant was ordered to pay the Claimant’s costs of the appeal! A few more of these sensible decisions and hopefully Defendants will start to pick and choose the cases to run these arguments on with a little more thought. By all means go after those Claimants who grossly falsify and exaggerate their evidence for personal gain, but if a lie has no material effect to the overall validity of the claim made, is it worth pursuing the argument?

Sadly it still remains the case that Defendants can be reluctant to specifically plead fundamental dishonesty as they are well aware that an After the Event Insurance policy will not cover such findings. Sometimes they want to have their cake and eat it!

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

European General Data Protection Regulation (GDPR)

Robin Selley

It seems that big changes to data protection as we know it are on their way to the UK as after several years of preparation and lobbying, the European Parliament has finally adopted the new European General Data Protection Regulation (GDPR) [Directive 95/46/EC].

So what is the GDPR you ask?

Well it will officially replace the basis behind the Data Protection Act 1998 and will become law in all EU member states from May 2018. The GDPR will also affect any businesses who process the personal data of EU citizens, even if they are based outside of the EU.

The document lays out compliance measures that each member state will need to meet before they take over for good in the summer of 2018 but what are the main changes we can expect from the GDPR?

One of the biggest relates to data responsibility as under the GDPR, both Data Controllers and Data Processors will be responsible for protecting their data.

All organisations will be obligated to have a full and firm understanding of what data they acquire, hold and process – and the legal basis for that data. Data protection measures must be integrated into business processes, in order to respect the rights of data subjects.

Most organisations will have to appoint a data protection officer, particularly those which process large amounts of sensitive personal data.

Additionally, the GDPR introduces a new obligation to notify data breaches to the relevant authorities within 72 hours of their first discovery.

At present the Information Commissioner can, in certain circumstances, impose financial penalties of up to £500,000. Under the new rules, non-compliance fines for failures to report breaches will be tiered – with a top tier fine up to a staggering 4 per cent of global annual turnover from late-reporting firms.

Firms may need to increase their privacy, in particular given the cyber-threats that exist at present. Policies and procedures for handling security breaches may need to be reconsidered and updated with all of this completed before the implementation date.

This news comes at a time when a London HIV clinic that leaked data on 781 of its patients has been fined £180,000.

The Information Commissioner’s Office (ICO) said the breach was “likely to have caused substantial distress” to those affected by the leak. Under data protection rules, the breach was deemed as sensitive and the organisation issued such a hefty fine as a result. Under the new regulations, could the fine have been even higher?

Organisations may require a data protection officer if they don’t have one already, and assess how and for what purpose they currently hold and/or process data. It may also be worth starting to review and update existing contracts in respect of parties’ data protection obligations.

Processing personal data is fundamental to the work of a solicitor. The Data Protection Act 1998 (DPA) regulates the processing of information relating to individuals at present. Solicitors should already be well versed with the DPA but the clock is ticking on preparing for the GDPR.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

Hip – Hip – Hypocrisy

Simon Pinner

The budget this week increased IPT from 9.5% to 10%. This latest announcement exposes a deep hypocrisy in government thinking and pronouncements. The best way to spot hypocrisy is normally to ask the right questions, so here are four of them:

  1. The government told us that it was determined to reduce the cost of motor insurance – how does increasing IPT assist this aim?
  1. We are told that this latest 0.5% increase in IPT is to pay for flood prevention. Where therefore has the income gone from the 3.5% increase in IPT which took place only a few months ago? Attempts to link certain taxes to certain expenditure are always popular – of course I wish that all of my tax was spent helping disabled children and that none of it was spent by government quangos. Labelling tax as one thing or the other does not change real spending, it only changes the labels.
  1. We were told that removing the right to claim general damages for whiplash would reduce fraud. It is equally true that abolishing housing benefit would reduce benefit fraud, and that abolishing all types of money would reduce bank robberies but this of course is rather beside the point. Something which is beneficial should only be reduced or removed if the fraud associated with it is at such a level as to cancel out (or at least severely damage) the benefit itself. Are personal injury claims at that level, given that the levels of damages are heavily controlled by the courts and that the number of claims is falling?
  1. We have not heard about “the Compensation Culture” for a while, but this appears to lie at the heart of the government’s antipathy to compensation for personal injuries. The Compensation Culture argument was that legitimate activities (maypole dancing, sports days and charity events etc.) were being inhibited because of a culture of compensation. How will removing the right to claim whiplash in motor accidents fulfil this aim?

Presumably the aim is to allow people the freedom to drive more recklessly?

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

Dishonest Deafness Claim Did you Say?

Robin Selley

To us, as After The Event Insurance providers, It has only been a matter of time before an insurer sought to have a deafness claim thrown out on the grounds of  ‘fundamental dishonesty’ and now that has happened.

A claim for hearing loss was made against Diamanttek, a diamond drilling company. The Claimant alleged that they did not enforce the use of PPE before 2013, over a 10 year period of employment.

The Claimant also alleged that no training had been provided about the correct use of hearing protection and that warnings were not given about the dangers of noise exposure.

These are often routine allegations made by Claimant’s in such cases, which are often refuted by way of witness evidence and / or the documents.

The defendant had maintained that the Claimant was supplied with PPE throughout his employment and denied liability.

At the first hearing DDJ Kilbane rejected the claimant’s evidence and dismissed the claim but was not willing to rule the claim was fundamentally dishonest, allowing QOCS to remain in place.

However, the Defendant appealed that decision and on the 8th February Judge Gregory, sitting in Coventry found the claim to have been fundamentally dishonest and granted Allianz permission to recover its costs from the Claimant.

Allianz believe this is a first for a disease claim.

But, will insurers now adopt the same stance when dealing with any employers liability claims where the dispute relates to one of provision of PPE and training in compliance with the various regulations that may apply?

The principles would essentially be the same would they not? Or is this part of the insurance industries concerted attack on claims for Noise Induced Hearing Loss?

As an After the Event Insurance provider, any claim which is found to be fundamentally dishonest will lose all policy cover. Defendant’s have always known that so have in the past been reluctant to strongly plead fraud, even though it might be strongly implied by their evidence. If successful with such arguments, any ATE Insurance provider will withdrawn cover and the Defendant will not be able to recover their costs under such a policy.

So, to plead fraud / fundamental dishonesty, or wait until the evidence is heard and then raise the issue?

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

Part 36 offers and fixed costs?

Robin Selley

The Court of Appeal has given judgment in Broadhurst v Tan and it’s some good news for Claimant’s. As an ATE Insurance provider, here is our view:

The Issues

The Court heard appeals on two cases (Broadhurst v Tan and Smith v Taylor) as to whether fixed costs should apply when a Claimant beats their own Part 36 offer.

In Broadhurst the judge held that fixed costs continued to apply. Whereas in Smith the judge held that fixed costs were inconsistent and did not apply before awarding the Claimant indemnity costs. So which is the right policy to adopt?

The Result

The Court of Appeal upheld the decision in Smith and allowed the Claimant’s appeal in Broadhurst.

Comment

Don’t get too carried away with these decisions.

Essentially, where a claimant makes a successful Part 36 offer in a section IIIA case, fixed costs will be awarded to the last staging point provided by rule 45.29C and Table 6B. The Claimant will then be entitled to costs to be assessed on the indemnity basis in addition from the date that the offer became effective.

The onus remains on the Claimant to make their Part 36 offer as attractive and as early as possible, preferably before proceedings have been issued in order to gain the full benefit of indemnity costs.

Defendants will need to be alive to the fact that the fixed costs will cease to apply if a Claimant beats their own offer. The upshot is that Claimants could obtain a generous result in terms of costs if their Part 36 offers are pitched correctly.

If your client fails to recover more than the defendant has previously offered, does your After the Event Insurance policy provide any cover (ie. fails to “beat a Part 36 offer”? Ours does!

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance, The Jackson Report & ATE Insurance

Hearts and Minds

Simon Pinner

In 1966, U.S. President Lyndon Johnson instituted a “Hearts and Minds” campaign in Vietnam to try to win the Vietnam war by getting the support of the local population. This was in essence heavy-handed propaganda, and I mention it because the motor insurers of today appear to be taking their lessons directly from that strategy.

It is worth looking at an article on page 4 of The Times last Saturday (13/02/2016). Average motor premiums rose by £100 in the last 4 months of 2015 (a 17% increase equivalent to 68% a year) and the insurers were being asked for an explanation! The ABI was well able to explain:

  1. there had been an IPT increase. Fair enough but of course they forgot to mention that this was only a 3.5% increase, so to plug the gap they said:
  2. the rise was due to “a fresh campaign by unscrupulous companies trying to encourage dishonest whiplash claims”.

The explanation is of course so ludicrous that it beggars belief, and under normal circumstances would give rise to howls of derision. Claimant solicitors had put through such a sudden and massive barrage of fraudulent claims over a four-month period that it had radically skewed the nation’s motor insurance premiums. The heavy-handed Hearts and Minds campaign which the ABI has carried out however has meant that they can be reasonably confident of getting away with giving any explanation however impossible it may be.

Solicitors and other pressure groups in the personal injury industry really need to give widespread publication to these sort of comments, and the fact that they are routinely published even in papers like The Times shows how effective the motor insurers’ strategy has been to date.

It is also an indictment of the government that it has allowed and encouraged such a one-sided debate to continue.

Posted in After The Event Insurance, CFAs & ATE Insurance, Claimant Solicitors & ATE Cover, General Posts about ATE Insurance, Personal Injury Claims & ATE Insurance, RTAs & After The Event Insurance, The Jackson Report & ATE Insurance

Proposed Change to the Small Claim Limit Foiled? Probably not yet

Jon Gouldsmith

The Forum of Insurance Lawyers this week announced that they will be opposing the Government’s planned increase to the small claims limit to £5,000 and to remove general damages for minor soft tissue injuries.

They announced that they are ‘regrettably’ unable to support the AIB on this issue, saying ‘It is unfortunate that there has not been a willingness on the part of the government to wait until the effects of recent reforms have come to fruition before proposing further change’.

Very sensible I hear you say, but wait there was more….

‘What’s needed is a well thought through package of measures to bring about the government’s objectives’.

Those measures, as suggested by FOIL members, include:

  • Online access to justice for claimants (through the portal or by way of a new online process), which should make allowances for people with limited access to technology
  • Better regulation of Case Management Companies
  • A process allowing claimants to value their own claims

So although a small cheer may have been raised by claimant representatives reading the headlines this week, I suspect they were soon silenced when looking more closely at the detail.

FOIL’s suggested approach is clearly an attempt to cut out claimant solicitors from the process of making a personal injury claim, who they no doubt feel get in the way of reaching a quick settlement with the average injured victim.

Making a personal injury claim is a technical process and will preclude the average person from bringing a claim themselves even if the small claims limit is increased. A medical report must be sourced from an appropriate expert and the damages, both special and general, must then be assessed on the basis of the report. This is a specialised skill even in a claim for minor injuries/damage.

This is, in my opinion, why it is in fact quite unlikely that there will be the huge rise of litigants in person forecast by some commentators.

But there is an easy solution suggest FOIL. Why not create a simple online claims process (no doubt funded by the AIB) where medical experts (no doubt funded by the AIB) can be found and reports arranged, with a snazzy little online valuation calculator that can then tell you how much your claim is worth. In fact most defendant insurers have such a system, Colossus, why not use that?

I will not insult your intelligence by suggesting what this would do to the average level of compensation that victims would be paid, without the assistance of an expert with experience of negotiating settlements with defendant insurers and with the appropriate knowledge of the actual, not threatened, risks of rejecting an offer.

FOIL do make a valid point about using the small claims limit to reduce perceived high levels of fraudulent claims, which they think will do nothing. That must be correct. What will the average fraudster care if their case is now a small claim, indeed would they not prefer that the court has less resources to hear live evidence under cross examination? This could simply be playing into the fraudsters hands.

But I think claimant lawyers must treat FOIL’s entrance into the debate with some care, it looks like it might be a double edged sword.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

Court Fees Rise

Robin Selley

It is the time of year when we recall a story first written many hundred years ago. No, not the Complete Guide to After The Event Insurance, but 800 years on from the Magna Carta it is worth once again reciting the words of Clause 40, best known for the following quote;

To no one will we sell, to no one will we deny, or delay right or justice.’

Move forward to the present day and we find that the right of access to justice is once again being eroded by the government as they plan to press ahead with a 10% increase in court fees across the range of civil proceedings.

Although the government has accepted that it was “too soon” to understand the full impact of the first round of fee increases from March 2015, the MoJ has said that it did not accept the argument that the 10% general uplift was unjustified and unnecessary, given the stated £1bn funding gap in the justice system.

The justice minister Shailesh Vara has said that fees will rise across a range of civil proceedings, including enforcement proceedings, determination of costs proceedings and civil business in magistrates’ courts, claiming to have “sought to protect the vulnerable at every stage” whilst asking “for a greater contribution from court users who can afford to pay more”, such as the sick and injured, or those who have unfairly lost their jobs.

So are we in danger of having a two tier justice system as the Law Society suggest or are these fees necessary to reduce the burden of the courts and tribunals on the taxpayer?

Access to Justice remains vulnerable to continuing onslaughts by those who detest and fear it, but survive it does.

You can also help yourself by protecting against the risks of not recovering court fees with our ClaimSafe ATE Insurance policy which has an enviable pedigree and track record in this sector. Our ATE Insurance is tried and tested – upwards of 200,000 After the Event Insurance policies have been arranged for personal injury claimants and it is currently being used by over 250 firms.

Our ATE Insurance has one of the lowest single, fixed ATE Insurance premiums on offer, combined with a generous indemnity limit which ensures full cover of risk including court fees and the security of knowing that the ATE Insurance premium is good value for your client.

Why not take a look here http://www.boxlegal.co.uk/

Posted in ATE Insurance Practice & Procedure

CMCs, Claimants and Insurers

Robin Selley

The Government had planned to undertake ‘a fundamental review of the regulation of claims management companies (CMCs)’ starting early in 2016. The review will include proposals for the introduction of a cap on the charges that CMCs can apply to their customers, and will consult on how this will work in practice. What impact could the review have on CMC’s, Claimants and both Before The Event and After The Event Insurance?

It is yet to be seen if this review will indeed go ahead given more recent developments, but as an After the Event Insurance provider, we await the next assault aimed at those pursuing claims for personal injury and loss.

Regulation of claims management companies has continued to evolve since the introduction of the Compensation Act 2006. Now the Legal Ombudsman’s remit enables it to consider complaints from customers about the services provided by regulated CMCs, leaving the Claims Management Regulation Unit (CMR Unit) at the MoJ to deal with regulation of the industry.

This increased level of regulation has very recently shown its teeth with the first penalty issued under new powers allowing regulators to fine a CMC specialising in finding NIHL cases £220,000 after hundreds of complaints were made about speculative calling. The Regulator had also fined a CMC almost £570,000 for high-pressure tactics to get customers to make PPI claims. Just this week the Regulator has fined another CMC specialising in finding NIHL cases £850,000 for making nearly 6m nuisance calls in only seven months.

Now, we ATE Insurance providers do not seek to defend those who make these nuisance calls in any way but since when have “nuisance calls” been worth more than taking someone’s life? Compare the fines above with some reported fines in October 2015 for breaches of Health & Safety rules which resulted in loss of life.

  • Rettenmaier UK Manufacturing Limited were fined £200,000 with costs for an employee’s death.
  • Two global companies were fined £275,000 and £375,000 respectively with costs in addition, after a worker was killed and another seriously injured.

There is a real drive from some to stamp out CMC’s (and After The Event Insurance) altogether. Many smaller firms rely upon them for work. They do not have the large budgets of the bigger firms, but to saturate daytime TV with adverts, does this not also add to the perceived compensation culture?

Insurance companies complained bitterly about referral fees at the same time as being the biggest recipients of them.

Law firms will continue to pay for marketing services. Many of them are simply not geared up to do this for themselves and certainly since the introduction of CMC’s. But what choice do they have?

If fees are capped, will this limit the amount some law firms can spend on marketing? Will more CMC’s then be brought “in house” and operate directly under a law firm, as many do now in any event? Perhaps this will be even more acute if the Small Claims limit does go up, as has now been stated by the Chancellor, but that is another enormous story in itself.

There are huge blurred lines between what are nuisance or cold calls and Non Opt in / TPS data/calls. As per usual the few ruin it for the many. Not all CMCs are the same. The reality is that law firms and CMC’s will adapt, as they did following the ban on referral fees. Some will thrive whilst others will fall by the way side. But will anything actually change for Claimants?

To us an After the Event Insurance provider, it seems that the right of redress and access to justice for those genuinely injured is being continually eroded.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

Shock Small Claims Limit Increase

Simon Pinner

The government has today made a surprise attack on personal injury claims as part of George Osborne’s spending review. The Small Claims Limit for personal injury claims is to be increased from £1,000 to £5,000, and compensation for whiplash claims will be curtailed.

The increase in the small claims limit flies in the face of the government’s relatively recent decision not to do so. In 2013 there was wide scale consultation on various personal injury issues, the upshot of which was that the transport select committee and the Ministry Of Justice recommended that the small claims limit should remain unchanged at £1,000. Since then, there has been no real warning that this issue was to be revisited and that there might be an imminent announcement on the subject. If the Small Claims Limit was to be increased then an increase to £5,000 was previously regarded as being at the extreme end of the scale.

This change would of course see claimants unable to recover their solicitors’ costs in an area where it is extremely unlikely that litigants in person would be able to pursue their own claims, with the result that after deduction of their solicitor’s costs, claimants will end up receiving a much lower percentage of their damages.

Still worse, the government has said that it intends to introduce measures to end the right to general damages for minor whiplash injuries, and will consult on the detail in the new year. It is believed to favour reimbursement of expenses and the cost of rehabilitation but to limit claims for general damages possibly by barring claimants who have not obtained medical treatment within say 14 days of the accident.

It appears that the government has taken advantage of a distant general election and an extremely weak opposition to push through most of the items on every motor insurer’s wish list. Christmas has come early for them, but sadly not for people who are injured through no fault of their own.

Posted in After The Event Insurance

Move Smart, MoveSafe

kirsten Roberts

Last year (2014), we decided to attend the Conveyancing Conference in Association with Modern Law Magazine for the first time.

Exhibitions are not something we normally get involved with, but after some persuasion from Modern Law’s Martin Smith, we decided to give it a go. The conference itself was a resounding success and the contacts we made from the event provided a good amount of new business over the coming 12 months.

This is one of the main reasons we have decided to take part in the event again this year, which this time is being held at Stamford Bridge, Chelsea on December 3rd. Oh…and of course, we also have a fabulous product we want to showcase!

MoveSafe provides insurance cover to people in the process of buying or selling a residential property.  An increase in potential buyers, especially in the capital, has meant that popular locations and properties are more in demand now than they’ve ever been.

A friend recently attended more than 100 viewings in central London before finally having an offer accepted. They made numerous offers during this time and were gazumped on at least one occasion.

With a MoveSafe Insurance policy, any costs incurred such as surveys, searches and even Solicitors fees would have been covered. The Solicitor providing the policy is also able to make some money via a commission.

The premium can be as low as £90.00, so both buyers and sellers who have a policy can be confident about limiting any losses incurred during the process of sale or purchase.

A recent survey amongst perspective buyers/ sellers suggested that this kind of policy is something that would prove very popular and would lead individuals to actively seek out a solicitor selling the policy.

With mortgages still available at such a low rates, property prices rising and numerous deals around for first time buyers, surely now is the time that Solicitors, Estate Agents and Mortgage brokers should be looking to offer something more to their clients.

The MoveSafe policy can provide peace of mind to buyers and sellers alike and potentially prevent the loss of thousands of pounds.

At Box Legal we would love the opportunity to chat to more firms about MoveSafe. Contact us now to see how you can increase your own business whilst safeguarding your clients against preventable loss.

Posted in MoveSafe - Abortive Transaction Insurance

A Charitable Decision?

Robin Selley

It would seem that the raft of satellite litigation that was envisaged following the introduction of QOCS has not quite materialised, but this has not stopped some important decisions being made by the courts as to the application of QOCS.

Late last year we had the decision in Landau v The Big Bus Company  when Master Haworth ruled in the Senior Court Costs Office that QOCS does not apply to appeals in Personal Injury cases which had commenced pre – LASPO as they related to the same “proceedings”. A sensible and logical decision you might think, certainly we thought so from an After The Event Insurance perspective.

More recently we have had the decision of the Regional Costs Judge, District Judge Phillips in the Cardiff County Court in the case of Casseldine v The Diocese of LLandaff Board for Social Responsibility (a charity) (unreported) (3 July 2015).

In Casseldine the Claimant had instructed solicitors to deal with a personal injury claim in 2012 and had entered into a Conditional Fee Agreement at that time supported by an ATE Insurance policy. Liability was disputed before her solicitors terminated their CFA in January 2013. This had the effect of also terminating the Claimant’s After The Event Insurance cover.

The Claimant subsequently instructed new solicitors and entered into a fresh CFA in August 2013, therefore post Jackson. Proceedings were issued in December 2013 and the case went to trial in December 2014 when the claim was dismissed. Not surprisingly, the Defendant’s argued that the Claimant should pay their costs. The Claimant argued that she should have the protection afforded to her by QOCS under CPR 41.13 to 44.17.

The Regional Costs Judge, District Judge Phillips held that this case could be distinguished from Landau on the basis that the proceedings were not commenced under the first (pre Jackson) CFA.

The first CFA had been terminated by the Claimant’s first solicitors, thus no success fee or indeed any costs were payable under the first CFA. The proceedings came under the second (post Jackson) CFA and had the Claimant succeeded at trial, the Defendant would not have had to pay any additional liabilities in any event.

The purpose of the rules was to achieve a quid pro quo, so that post 1st April 2013 QOCS protection applies where a Defendant is not faced with any additional liability.

Perhaps if the Claimant had succeeded with her claim at trial, the Defendant would not have argued that the QOCS provisions should have applied, in order to avoid paying a success fee or additional liability?

Both Landau and Casseldine appear to be sensible and logical decisions as what is important is when the substantive proceedings began following the commencement of a retainer with solicitors.

From an After The Event insurance point of view, this was a sensible decision. I suspect the ATE Insurance provider involved was keeping a very close eye on these proceedings as to the relevant dates of retainer and proceedings, both pre and then post QOCS.

That said, permission to appeal has been granted to the Defendant.

Posted in Personal Injury Claims & ATE Insurance

It’s Negligent, Clinically?

It seems like an age has passed since Master Leonard sat in the Senior Courts Cost Office in the case of Ms Emily Nokes -v- Heart of England Foundation NHS Trust (2015) which concerned an ATE Insurance policy for a Clinical Negligence claim obtained by the Claimant from Temple Legal Protection following the Jackson reforms in April 2013.

The policy insured the cost of experts’ reports on causation and liability and so was recoverable from the defendant. (Section 2 of the Recoverability of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 No. 92 of 2013). The premium specifically allocated to cover the cost of these reports was £5,680 plus Insurance Premium Tax for an indemnity of £10,000. In addition it was “self-insuring” ie. there was no premium to pay if there was a claim on the policy. The question the court had to answer was whether the policy premium which the defendant was liable to pay was reasonable and proportionate.

This is an important benchmark decision on the level of premiums for this type of cover and Claimants can now pursue these actions with the comfort that if the claim is successful then they should be able to recover a substantial policy premium if they obtain an early medical report on liability and/or causation. It should be noted that although the Defendant’s challenged the level of premium applied aggressively, they did not offer any substantial evidence to support their contentions that the level of premium was unreasonable and/or disproportionate.

But soon after this decision was made, came further complaints from the NHS Litigation Authority and Government that the level of costs received by a successful Claimant, were grossly excessive and generally far outweigh the value of the average claim. The Claimant body will continue to argue that medical negligence cases are generally complex and require specialist knowledge to enable the injured party to receive the compensation they may be entitled to. Claimant’s face a long and hard battle ahead as the NHS Litigation Authority have a reputation for being obstinate with a confrontational approach to claims, which means that the Claimant’s lawyers have to work hard to make progress with these claims.

So what can be done about this situation? Well it’s all too obvious isn’t it; fixed costs and a portal should be introduced for Clinical Negligence claims to ensure that the greedy lawyers do not continue to “milk the system”. The government has now confirmed that it will legislate on fixed costs for clinical negligence claims worth up to £100,000. The health minister Ben Gummer peddles the view that some lawyers have ‘unscrupulously’ used patient claims to load ‘grossly excessive’ costs on to the NHS and charge far more than the patient receives in compensation. Costs are currently assessed by a Judge to decide whether they are reasonable (some costs are judicially assessed twice if subject to cost budgeting and detailed assessment).

The Government, either (a); think they know better than the Judges, or (b); they want to pay unreasonably low costs. But it gets even better as the High Court has now acceded to Lord Justice Jackson’s (yes him again) request for a temporary break in costs budgeting for all London clinical negligence cases with hearings listed for between October 2015 and January 2016.

Perhaps a portal system would be of benefit to all concerned at a time when the judicial system creaks ever more loudly under the strain of budget cuts and austerity. It is all to obvious to those who work in this arena that a portal system, with time limits akin to the other portals, would see the vast majority of claims fall out. What if the time periods allowed, from first notification to the point when a decision on liability is due was simply increased, to give the NHSLA sufficient time to investigate claims properly and enable them to consider such claims properly but also with a commercial view?

If an admission of liability were given early enough, the claim could stay within the portal and costs significantly reduced. If contested, then costs on the standard basis should apply? Would this also not give the NHSLA more of an incentive to make an earlier admission and save costs?

Either way, a truly dreadful state of affairs.

Posted in Personal Injury Claims & ATE Insurance

Cyclists – “A Presumed Liability”

Robin Selley

As a cyclist and PI lawyer, I have heard the calls growing louder for there to be  a “presumed liability” for motorists who are in collision with cyclists and pedestrians.

I was out cycling recently and had a very near miss with a passing car. The car driver decided that he wanted to overtake me when I was passing parked vehicles, squeezing through a gap that was not there, causing me to take evasive action before being hit. This was followed by a cry of “ffing cyclist” from the passenger in the passing car.

So what effect would a “presumed liability” law have for motorists in England?

Many cyclists will say that such a law will help make Britain’s roads safer for cyclists and pedestrians by increasing the awareness and caution of motorists.

The system, which incidentally operates in all but five member states of the European Union, would provide for a presumption of liability on a motorist involved in a collision with a more vulnerable road user such as a cyclist or pedestrian, unless the latter can be shown to have been at fault, rather than an injured cyclist or pedestrian having to fight tooth and nail to show on balance of probability, that a driver was at fault in civil cases brought at present, thus shifting the burden to the vehicle driver. but not to the extent that the motorist would be held criminally liable.

By adopting a “hierarchal structure” downwards to reflect the vulnerability of road users, would this not help to protect those who are more likely to be injured in a collision? Let’s face it, a cyclist will always come off second best in a collision with a lump of metal being driven at 20 mph. There has also been a number of cases recently with pedestrians being struck by cyclists, so would the presumed liability then continue along the chain. Why not?

It is argued that such a  law could help to improve road safety for cyclists and pedestrians, by encouraging more careful driving but the commonly held view is that there would be widespread disapproval by motorists to such a law. How would this work with insurance? Whilst motorists are required to be insured before they drive, cyclists are not and therein lies part of the problem. Cyclists and pedestrians can claim up the chain to motorists but how many cyclists have insurance to protect themselves if they were the party at the top of the collision chain? Or how many pedestrians would have liability insurance for causing accidents with other users of the highway?

Insurance could be made compulsory for all users of the highway, from pedestrians upwards, but there would always be a number who simply float the rules, as there is now with motor insurance. So would it work after all?  Presumed liability would be a start and I for one see no reason why it should not be implemented.

Posted in After The Event Insurance

ATE Insurance Policy for Flight Delay Compensation Claims

Daniel Morris

More and more people are becoming aware that they can claim up to €600 for flight delay compensation if their EU flight was delayed for 3 hours or more or cancelled.

Such claims are often resisted by airlines with them quoting various exceptional circumstances or simply refusing to pay passengers who attempt to claim flight delay compensation for themselves. This has given rise from a specialist band of solicitor firms such as Fairplane UK Limited who have created streamlined systems to enable flight delay compensation claims to be processed quickly and profitably.

Around 75% of all claims require proceedings to be issues, some of which can be subject to full adverse costs liabilities. We have worked with Fairplane UK Limited to develop an affordable ATE Insurance product which will protect clients from any disbursements or adverse costs risk when making flight delay compensation claims.

With prices from as low as £35+IPT, clients can now be fully protected and solicitors can fully comply with their SRA client care obligations.

Posted in After The Event Insurance, Flight delay compensation, Personal Injury Claims & ATE Insurance

Clinical Negligence ATE insurance – How much?

Robin Selley

Now the dust has settled after the implementation of Section 2 of the Recoverability of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 the first satellite litigation is starting to wind its way, slowly through the courts.

Just to recap, following the Jackson reforms in April 2013 part of an ATE Insurance policy for a Clinical Negligence claim obtained by a Claimant can still be recovered from the losing the party. The intention was to enable Claimant’s to protect themselves against the initial policy cost of experts’ reports on causation and liability and so this part of the policy premium was to be recoverable from the defendant.

But under this new regime the cost of After The Event Insurance remained significantly higher than for other PI claims, such as motor accident claims and it was only a matter of time before these policy premiums were challenged by Defendants.

In Ms Emily Nokes -v- Heart of England Foundation NHS Trust (2015) Master Leonard had to consider whether or not the policy was compliant with the Regulations (yes it was and in two parts, the Defendant recoverable part and the client non-recoverable part) and also to determine whether or not the premium applied to the recoverable element was reasonable and proportionate.
The premium specifically allocated to cover the cost of these reports was £5,680 plus Insurance Premium Tax for an indemnity of £10,000. In addition it was “self-insuring” ie; there was no premium to pay if there was a claim on the policy.

The Defendant challenged the amount of the premium, but did so with no real evidence to dispute the level of premium that was applied. All rather surprising when the decision to challenge the premium must have come from an insurer backed Defendant? ATE Insurance policy premiums have of course been challenged before by the big insurers but have any of them come forward to enter the After The Event Insurance market and offer competitively priced ATE Insurance policies? Of course they have not as the reality is perhaps that they could not offer cover any cheaper than those in the ATE Insurance market already.

In this instance, Master Leonard found the policy was fully compliant with the statutory requirements and the premium of £5,680+IPT was reasonable and proportionate and therefore recoverable in full. This was unaffected by the fact that it covered its own premium (it was “self-insuring”).

This is an important benchmark decision on the level of premiums for this type of cover and Claimants can now pursue these actions with the comfort that if the claim is successful then they should be able to recover a substantial policy premium if they obtain an early medical report on liability and/or causation.

Box Legal offers a premium well below this figure with a similar indemnity of £10,000.

However, under Section 2.2 of the above regulations, you cannot recover a premium if you never obtain a report on liability/causation. You may, perhaps, not need a report because the issues are clear, or the defendant admits liability/causation. This may leave you in difficulties if you have incurred a substantial premium to cover this risk. Fortunately the ClaimSafe policy brokered by Box Legal permits you to cancel this “recoverable” element of the policy in this situation, so your client will not be liable for this sum.

Posted in After The Event Insurance for Clinical Negligence, Personal Injury Claims & ATE Insurance

Moving House Without Risk

Daniel Morris

Guess what I am doing at the moment [a clue is in the title]. I have to say, all those purveyors of doom are right. Moving house is incredibly stressful.

The problem is that there are so many factors to keep track of: the children’s schooling, location in relation to the children’s school, selling your home for the best price, finding a home, removals, stamp duty (!) etc.

Not only is it an expensive business but you have to do all of this whilst looking over your shoulder for gazumpers or a collapsing chain. If I had any hair it would have fallen out by now…

So what can be done to make the whole moving house procedure less stressful? A reliable solicitor is a good starting point i.e. one who is on the ball, pushing the parties and providing updates. Not all solicitors do this. We are fortunate to have found one of these so at least we have someone trying to get the completions sorted out rather than just being a robotic form filler.

The other thing is, we are insuring the transaction with our very own MoveSafe policy! Why? Well, we don’t want to be out of pocket if the whole thing falls through. When you have a chain and a rapidly moving market then there are quite a few things that can go wrong. When they do, it costs money. A lot of money. We have been caught once before and don’t want it happening again.

So, I am taking advantage of the insurance which we developed ourselves. Must be good then wouldn’t you think?

Posted in Personal Injury Claims & ATE Insurance

CFAs – Should we name and shame? An After The Event Insurance providers view

Linsey Carroll

As After The Event Insurance providers, we know that arranging funding for your client at the outset of a case is one of the most important parts of a Personal Injury lawyer’s job. Whilst I’m sure we all do the job for the satisfaction it brings, once the case has settled, recovering costs is never far from our mind! We know it’s important to have a fully compliant Conditional Fee Agreement, but as the following case law may suggest, naming the defendant within the agreement may open you up for challenges to your CFA.

There have been a number of cases in which the wrong defendant was named in a conditional fee agreement, with each case reaching a different conclusion as to the validity of the CFA. Four of the most pertinent cases are discussed below.

Law v Liverpool City Council [2005] EWHC 90020 (Costs)

In this case, Liverpool City Council was named as the Defendant, but it should have correctly been Berrybridge Housing Association. The CFA in question simply named Liverpool City Council. The Court held in this case that there was in fact still a valid retainer, but that the CFA itself was ineffective and therefore only base costs and no success fee could be recovered.

Brierley v Prescott [2006] EWHC 90062 (Costs)

In this case, the Defendant was named as ‘Hertz UK Limited Car Hire’, when in fact it should have been the driver of the vehicle, Mr Prescott. The Court in this case held that the intention of the parties was obvious, in that a claim for damages was to be made for personal injury suffered on a specific date, which was being handled by Hertz. The Judge held that the CFA was binding in this instance and therefore costs could be recovered, including a success fee

Hailey v Assurance Mutuelle Des Motards SCCO: CCD 1405291

The accident in this case happened in France. Under French law, the CFA should have actually named the Insurance Company rather than the Defendant, which it did not. The Court in this instance held that if the wrong defendant was named in a Conditional Fee Agreement then there was no valid retainer and thus the indemnity principle meant that no costs could be recovered.

Brookes v DC Leisure Management Ltd and Technogym UK Ltd [2013] EW Misc 17 (CC) Exeter County

The CFA here named the Defendant as Exeter City Council, when in fact the Defendant should have been DC Leisure Management Ltd and Technogym UK Ltd.

The court upheld a previous decision of Master Gordon-Saker, and held that no costs would be recovered.

The court pointed out that it was unnecessary to name any defendant at all, saying:-

“Although the statutory requirement is that the CFA must be in writing, it does not have to identify the Defendant.”

Does this leave you confused as to the Courts stance in relation to the CFA? We aren’t surprised. It seems that the lesson to be taken away from the varying decisions in the above cases is that the CFA should not name the Defendant, but include the accident date so that the specific proceedings can at least be identified.

As lawyers and providers of After The Event Insurance, we’re all too aware that the devil is in the detail but in this instance, the detail can be the devil!

Posted in Personal Injury Claims & ATE Insurance

Fundamentally Dishonest and After The Event Insurance

Robin Selley

The new rule on fundamental dishonesty in personal injury actions came quietly into force on the 13th April under s57 of the Criminal Justice and Courts Act 2015.

Little has been said by the judiciary about this new rule and Claimants and their lawyers may well be carrying on their business as before.

“Fundamental dishonesty” first arose in the new CPR 44.16, so that Claimants who were found to be ‘fundamentally dishonest’ lost the protection of QOCS. But what exactly has changed under the new rule?

The court can now find that a Claimant has been fundamentally dishonest in relation to “the primary claim or a related claim”. Where such a finding is made, the court must dismiss the primary claim, unless it can be satisfied that the Claimant would suffer substantial injustice as a result.

Under the new s57, courts dismissing a claim on the grounds of fundamental dishonesty must record in their order the amount of damages they would have awarded to the claimant “in respect of the primary claim”. This amount is to be deducted from the costs the claimant is ordered to pay.

Meanwhile, defendant practice DWF has secured one of the first ‘fundamental dishonesty’ rulings, denying a claimant the protection of qualified one-way costs shifting (QOCS).

Here a claim was brought by a security guard who fractured his shoulder. The Defendant, Severn Valley Railway, had hired an ice rink to entertain families at its station in Worcester while the track was closed. The Claimant alleged that he had tripped on matting left behind after the rink had been removed and claimed for damages.

However, at trial in Telford County Court, DJ Rodgers made a finding of fact that the rink had not been dismantled and was still on the concourse at the time the accident was meant to have happened, which meant that the Claimant could not have been truthful.

Accordingly, the claim was dismissed and applying the fundamental dishonesty rule, the Claimant was ordered to pay over £11,000 in costs.

It should be noted that the court did not say that “fundamental dishonesty” had to be specifically pleaded, and was happy to use its discretion, based on the findings of fact from the trial.

So, do Claimant solicitors need to review their retainers and advise clients about the implications of the new ‘fundamentally dishonest’ rules?

The new s57 will apply to claims issued on or after 13 April, so we are unlikely to see the result of this for some time to come.

But Claimant solicitors must consider whether their retainers adequately deal with a case being struck out on the basis of fundamental dishonesty. Clear advice will have to be given to clients on the implications for their funding arrangements should this happen. If such allegations are made, the Claimant should be advised of the position that the After the Event Insurance provider is likely to take, indeed many Defendant’s will insist that the relevant ATE Insurance provider is notified.

Previously, it has been for the defendant to convince the court to exercise its power and strike out a claim; but under the new s57, the court must strike out unless convinced that doing so would cause the Claimant substantial injustice, therefore shifting the burden to the Claimant.

Perhaps now Claimant lawyers will stop padding out their Schedules of Loss with exaggerated claims, even if some of the items claimed are genuine

In any event, if the claim is dismissed due to a fundamental dishonesty on the part of the Claimant, is any After The Event Insurance provider going to indemnify such a case? That of course is unlikely to happen and as we find at present, sometimes Defendant’s do not want such findings as they do want to recover their costs.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

Success Fees and Noise Induced Hearing Loss – “Say that Again”, said the After the Event insurer!

Robin Selley

An important decision for all who provide After the Event Insurance has now been handed down by Mr Justice Phillips in conjoined cases, Dalton and Others –v- British Telecommunications plc [2015] EWHC 616 (QB)

At stake was the preliminary issue as to whether NIHL/tinnitus is to be treated as an injury or a disease, for the purposes of calculating fixed success fees under the former part 45 of the Civil Procedure Rules.

The Defendant submitted that the court had to consider the “natural and ordinary” meaning of the word “disease”. The CPR contains no definition therefore the word simply had to be applied in the context of a claim for NIHL/tinnitus.

The Claimant submitted that the court should consider a considerable body of material in order to construe “disease” more widely to include the condition of NIHL/tinnitus. This included the provisions of the social security legislation which, as early as 1975 did contain an extended definition of disease including: “A10 Substantial sensorineural hearing loss (occupational deafness)”. It follows that NIHL has been expressly defined as a ‘disease’ in subordinate legislation governing statutory compensation for industrial injuries for about 30 years and had been so defined about 20 years prior to the introduction of section V of CPR Part 45 in 2005.

Mr Justice Phillips decided that NIHL/tinnitus is a disease rather than an injury, and the higher success fees applicable to diseases should apply.

Some good news then for Claimant’s after the battering that has been received in recent times.

Mr Justice Phillips went on to state that;

consideration of the legislative history strongly indicates that Parliament intended the term ‘disease’ in sections IV and V of CPR 45 to include any illness (whether physical or physiological), disorder, ailment, affliction, complaint, malady or derangement other than a physical or physiological injury solely caused by an accident or other similar single event … it is inconceivable, when looked at in its proper litigation context and considering the mischief being addressed, that Parliament did not intend to include NIHL (and VWF) in type C in section V”. (our emphasis).

It should also be noted that the Civil Justice Council’s press release prior to the introduction of the former part 45 of the Civil Procedure Rules, expressly recorded that an “industry agreement was to be embodied in rules and would prove for the success fee in claims for NIHL (and VWF) to be 62.5%”.

Many of those who now complain about the inclusion of NIHL as a “disease” would have been party to that very same “industry agreementreached many years before, confirming the view of many on the Claimant side that this was just another attack on the Claimant by the insurance industry to limit the level of costs that apply to such claims. After all, the insurance industry view NIHL claims as the new “whiplash”. It did not come as a surprise to us in the After The Event Insurance industry to see that the Defendants would try to find new ways to attack claimant’s right to pursue just claims.

So does this mean the conclusion as reached by Males J in the case of Patterson –v- Ministry of Defence (which relates to success fees in non-freezing cold injury claims (“NFCI”)) was wrong?

Perhaps Phillips J would not have reached the same decision,  so here in the world of After The Event Insurance, we await the next round of litigation.

Posted in After The Event Insurance, Personal Injury Claims & ATE Insurance

To QOCS or not to QOCS? An ATE insurance dilemma!

Robin Selley

I imagine that all of us in the world of PI litigation and After The Event Insurance have been patiently waiting for the raft of satellite litigation to hit the already clogged up courts following the Jackson changes, but has that really happened as yet?

Currently not to the extent that some predicted, perhaps due to the courts being so busy, but no doubt we will see more in the coming months and years as more cases with QOCS protection come before Judges.

One issue that has been considered recently however, is will QOCS apply where there are two CFA’s in place: one signed and dated after 1st April 2013; and one signed and dated before 1st April 2013.

So what is the answer? Well, this came before Master Howarth (Senior Costs Judge) to determine in Landau v The Big Bus Co. (1) and Zeital (2) SCCO 1403806.

Here, the main action was a claim for personal injury following a road traffic accident. The claim failed at the first instance trial. At that time, the Claimant’s solicitors acted under a CFA, which pre-dated the Jackson changes. The Claimant also had the benefit of an After The Event Insurance policy which only covered the first-instance claim. It was agreed (and this tends to be standard wording used in the majority of CFAs) that the Claimant’s first CFA covered the claim and “an appeal by your opponent”. So, the original CFA would not cover an Appeal by the Claimant.

Permission was granted to the Claimant to Appeal and his solicitors entered into a new CFA which post-dated 1 April 2013.

The Appeal failed but the main issue for determination was that of costs, in particular whether or not QOCS applied in relation to the appeal.

The Claimant maintained that the new CFA related to a different set of “proceedings” pursuant to CPR 44.17, therefore Qualified One-Way Costs Shifting should apply in relation to the appeal.

The Defendants submitted that this was not the case, both due to the wording of CPR 48.2; and/or that as there was only one set of damages at stake, the entire case was one set of “proceedings”.

The Court held that QOCS does not apply.

At paragraph 18 of his Judgment, Master Haworth stated:

I accept the Second Defendant’s submission that 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.”

Seems all clear to me but in any event, Master Haworth also held that for the purposes of CPR 44.17, the appeal was part of the same “proceedings”, and that where QOCS does not apply in the first instance in must also not apply in any subsequent appeal.

But what happens if the solicitor acting for a party changes post April 2013? They will no doubt enter into a new CFA with their client but if acting in relation to the same matter that is the subject of proceedings that were commenced under a pre 1 April 2013 CFA then QOCS should not apply?

This would seem to be the result of Master Howarth’s decision. Not so much a problem if the Claimant has an After The Event Insurance policy that remains on cover, but this could lead to unfortunate consequences, such as having to pay a very high ATE insurance premium from damages, if no After The Event insurance is in place. Unfortunately this is an event widely predicted when the rule changes were first proposed.

Posted in Personal Injury Claims & ATE Insurance
Welcome to the After The Event Insurance Blog
This blog is produced by Box Legal Limited, providers of After The Event Insurance to the legal profession. Our aim is to provide news, advice and guidance on all issues around ATE Insurance and making personal injury claims. We welcome your comments and questions both on the blog and by contacting us direct on 0870 766 9997 or by emailing daniel@boxlegal.co.uk