IPT Increase From 10% to 12% on 1st June 2017

Simon Pinner

You may be aware that the government has increased the rate of Insurance Premium Tax (“IPT”) from 10.0% to 12.0% with effect from the 1st June 2017. This note explains the effect which this will have on the new ATE policies you purchase from 1st June onwards, and on existing policies.

Existing Policies

On previous occasions when the government has increased IPT, (the last increase was in October 2016) premiums on existing ATE policies were immediately affected and any premium paid after the date of the increase had to include IPT at the new higher rate.

There has however been lobbying by the insurance industry to avoid this unnecessary administration, and the government has now allowed a 12 month period of grace during which existing policies will not be subject to the IPT increase.

This means that for all existing ATE policy premiums (policies purchased on or before 31st May 2017) there will be no IPT increase and the premium will not change provided that the premium is paid within the next 12 months – by 31st May 2018.

Obviously in May 2018 there will still be some policy premiums outstanding, and IPT on them will then be payable at a higher rate, but many premiums will have been paid by then so far fewer policies will be affected. We will email you again in May 2018 in relation to pre 1st June 2017 policies which remain outstanding at that time.

New Policies

The underlying base premiums (ie. the premium excluding IPT) for all policies have not changed – only the government rate of IPT has altered. You can calculate the new premium for policies by dividing the existing IPT inclusive premium for each stage by 110 and then multiplying the result by 112.Solicitors will of course need to amend client care letters so that your new clients are advised of the correct new premium which will apply for all After the Event Insurance policies purchased after 31st May 2017.

Posted in After The Event Insurance

To Restore or Not to Restore?

Robin Selley

For any Occupational Disease practitioner out there, one issue that you may well have come across is whether there is a need to restore a dissolved company before proceedings are issued against them.

This one particular trap that has always caught out Claimant PI practitioners is the rule that a claim issued against a dissolved entity is a nullity, even more so where a Defendant is dissolved after proceedings have been issued.

We have seen many comments over recent times of cases where Defendant insurers have assured the Claimant’s solicitor that they would not require them to take this procedural step and incur the cost of restoring a company.  The worst examples of this that we have become aware of also had the Defendant solicitors refusing to pay the costs incurred in restoring a dissolved company, following on from the assurance of their instructing insurers that this step would not be necessary.

We understand that it is common practice with many insurers offering to ‘waive’ the need for restoration with a view to saving costs. But is that the right course of action for any Claimant solicitor to take, when pursuing a claim against a dissolved company?

Let’s face it, in the vast majority of occupational disease claims, there is a real risk that the Defendant employer / company will be dissolved. This is an issue that Claimant’s need to get right from the outset.

We would refer you back to the Court of Appeal decision in the case of Peaktone Ltd v Joddrell [2012] EWCA Civ 1035.

Joddrell had issued proceedings for a claim for NIHL against Peaktone Ltd. However, unbeknown to Joddrell when proceedings were issued, Peaktone Ltd had been struck off the company register and was dissolved.

In order to correctly commence proceedings, Joddrell sought an order from Companies Court asking for Peaktone Ltd to be restored to the company register but he had failed to disclose to Companies Court that he had already purported to issue proceedings against them.

Thereafter, Peaktone Ltd successfully applied to have the original claim struck out on a number of grounds but Joddrell appealed to the High Court in order to have that decision set aside.

So does an order made under section 1032(1) of the Companies Act 2006 restoring a company back to the register validate proceedings brought against the company while it was dissolved?

The High Court held that restoration to the register under section 1032(1) of the Companies Act 2006 did validate the original proceedings brought by Joddrell.

Peaktone Ltd took the matter on to the Court of Appeal who agreed with the High Court as to section 1032(1) of the Companies Act 2006 so that if a company is restored to the register, it is “deemed to have continued in existence as if it had not been dissolved or struck off the register”.

These problems dealing with the dissolved Defendants continue to loom when pursuing claims for Occupational Disease cases but how does the Third Parties (Rights against Insurers) Act 2010 affect this? The reality is that it shouldn’t have too much of an impact for sometime.

The new Third Party Rights etc. Act is not retrospective and will only apply to insolvencies that occur after the date of commencement of the Act, so despite what Defendants might have you believe, you will need to continue restoring companies where the insolvent event was before 01.08.16.

This is always a tricky area where Claimant lawyers can be lulled into a false sense of security in believing that restoration of a dissolved company can be waived. The short answer is this, do not risk it, restore!

If you are not a member already as an Industrial Disease practitioner, why not come and join the “Industrial Disease Network”. This is a forum for Lawyers, Medical Professionals and others who work within this field to share ideas, network, and discuss topical and technical issues within the Occupational Disease arena. This group was founded by our very own Robin Selley and can be found here https://www.linkedin.com/groups/4285490

Posted in After The Event Insurance

The Rise and Rise of Car Insurance Premiums

Robin Selley

As the latest report from comparison site Confused.com hits the news, who really are the bad guys when it comes to whiplash?

In this latest report (http://www.bbc.co.uk/news/business-39558258), the reasons as to why car insurance premiums are rising so much are due to expensive repairs and recent government changes to injury “payouts” according to Confused.com.

Firstly, the press do like to use the term “payout” when the reality is that “compensation” is being paid, in essence to put the injured person back in the position they were in before they suffered injury and/or loss due to the negligence of another; and more importantly, to compensate them for the injuries suffered.

This is an important distinction to make and for the public to understand, in particular when the ABI complain so profusely in response to the recent cut the discount rate – a calculation used to determine lump sum compensation to claimants who have suffered life-changing injuries to ensure that they have sufficient amounts to help pay for future costs, such as an ongoing need for care.

Unsurprisingly, the ABI and several insurers complained about the risk to vast profits being wiped out as a result and again, the way this has been reported by the mainstream media and insurers shows more concern for profit than the needs of the seriously injured.

Back to the latest report from Confused.Com which found that drivers paid on average £781 on comparison sites for a comprehensive policy in the year to March 2017. They also believe that average premiums are set to rise to a record high and could pass £1,000 next year.

Other reasons given include the costs of repairs to vehicles, newer models can costs far more than their older counterparts due to the technology contained within these vehicles. It is not just a bent bit of metal or plastic, but now one that contains all sorts of electrical sensors as well.

There is also an impending rise in Insurance Premium Tax to 12%, having already risen from 6% in November 2015.

Despite the numerous promises made by the insurance companies that once changes had been made to personal injury claims (not just whiplash claims), it wpould appear that very little if anything has been passed back to the consumer.

But claims for whiplash are all a big con, right?

Yes of course there are some, a very small minority, who are looking to cheat and lie to make money. But not everyone injured in a road traffic accident is putting it on as the insurance industry would have us believe.

The reality is that whiplash hurts. It can require physiotherapy to put right and often time off work, which might be unpaid. So the injured party should be entitled to recover such losses and be properly compensated for a genuine injury.

However, the ABI and the Government would have you believe that whiplash is a fairly limited injury with little or no consequences for the injured party. They would see pay outs capped at £400 with costs limited, so those with minor injuries may struggle to find a solicitor willing to act for them. Then they are at the mercy of the insurer to pay them the correct amount of compensation.

As another recent article suggested, if the Government really wants to help motorists it should ask the competition watchdogs to take a fresh look at insurers;

http://www.independent.co.uk/news/business/comment/car-insurance-economists-debunk-industry-claims-whiplash-crackdown-will-result-in-lower-premiums-a7635836.html

According to Capital Economics “It is a mistaken belief that ‘whiplash’ claims have been responsible for rising motor insurance premiums in the United kingdom in recent years.”

As the article above suggests, the reforms to whiplash claims, are more likely to boost insurers’ profits by up to £0.7 billion per annum rather than provide any meaningful reduction to premiums for motorists. Insurers will of course revert back to the effect that the change to the discount rate will have. Could that be short lived in any event? Given that as soon as the ABI shouted in horror at the change to the discount rate, the Government jumped and announced a further consultation on how the discount rate should be set in the future, allowing just six weeks for responses to be given.

Another “fait accompli” perhaps from the Government, perhaps we can leave you to decide who the bad guys really are in all of this.

Posted in RTAs: Road Traffic Accidents

FeeSafe ATE Insurance for Employment Tribunal Fees

Robin Selley

Back in July 2013, new rules came into force which introduced significant charges for anyone seeking to make a claim in the Employment Tribunal. The Government intended these Tribunal Fees to recoup some of the costs of running the Tribunals but critics remain concerned that the high level of charges which start at around £160, and increase to between £230 and £950 for further hearings, will prevent people from making valid Tribunal Claims.

A long-running legal challenge, brought by the trade union Unison against the Lord Chancellor fees is now nearing its conclusion.

Unison claims that the introduction of fees has stopped thousands of employees, particularly those on low incomes, from being able to pursue claims against employers if they are badly treated by them. The court will also have to consider whether the fee scheme effectively “makes enforcement of UK employment law rights uneconomical”.

Since the introduction of these fees, there has been an abundance of evidence to demonstrate that the rights of access to justice for large numbers of claimants has been prevented within the tribunal, due to the fees now levied.

Also this week, the Joint Committee on Human Rights, in publishing its Human Rights and Business 2017 report, urged the government to reduce tribunal fees. The committee, chaired by Harriet Harman QC MP, has said the fees were clearly ’a barrier to victims seeking justice when they have suffered human rights abuses, including discrimination, at the hands of their employers and offer impunity for employers abusing human rights’.

The committee said: ’This means that, in order to have legal representation, they need to find a lawyer who will represent them on a no-win, no-fee basis. This significantly reduces the pool of lawyers willing to take on such cases.’

The Justice Minister Sir Oliver Heald told the committee that the government is consulting on some improvements to the employment tribunal fee scheme but that overall “the policy is working well”.

Who for one might ask? Evidently not for the complainants as they are the ones who simply cannot afford such luxuries as access to justice.

But perhaps there is another way for complainants to be able to obtain some access to justice through the employment tribunal?

After the Event insurance for Employment Tribunal Fees

We are now able to offer After the Event insurance for Employment Tribunal Claims.

Our FeeSafe After the Event Insurance product has been introduced to safeguard access to justice for anyone wishing to make a claim by insuring the Tribunal Fees and, in some circumstances, actually providing funding of the new Hearing Fees up to £950. The funding is necessary as often the person making a claim will have lost their job and so will not be in a position to afford the new Tribunal charges.

We have created a dedicated website which explains all about our Tribunal Fees ATE Insurance product called ‘FeeSafe’. You can take a look here.

Posted in After The Event Insurance, Employment Tribunal Fees

New Untraced and supplemental Uninsured Drivers Agreements

Robin Selley

A gentle reminder for all of you who practice in motor claims that the new Untraced Drivers Agreements and a supplemental Uninsured Drivers Agreements came into effect for all motor accidents occurring on or after 1 March 2017.

The earlier MIB agreements continue to apply to accidents which occurred prior to that date.

The most substantive changes to the Untraced Drivers Agreements appear to be:

  • The use of an MIB claim form is now compulsory whereas before the claim only needed to be made in writing;
  • The requirement to report to police now only applies if the MIB reasonably requests them to do so;
  • The position in cases of property damage remains largely the same. MIB will still only pay property damage claims arising out of the use of an unidentified vehicle above the excess where a claim for significant personal injury arising from the same event has been paid.
  • The definition of significant personal injury has been changed and now requires death, 2 nights of hospital in-patient treatment (previously 4 days) or 3 sessions of hospital out-patient treatment (not previously covered). This is a significant reduction in the ‘significant personal injury’ threshold in such cases;
  • Where a claim is brought by dependants or the estate of a deceased person the knowledge for determining whether a claim can be refused on the basis that the vehicle was known to have been stolen or was known to being used without insurance is now the knowledge of the deceased;
  • The terrorism exclusion is removed;
  • The exclusion of vehicle damage claims where the damaged vehicle was uninsured is removed.
  • A new costs structure is applied which appears to reduce costs payable for claims up to £48,000 but increases costs where more than £48,000 compensation is paid;
  • MIB can no longer ask for a lower award where there is an appeal against the original award;
  • Awards to children and protected parties will now be subject to approval by an arbitrator in all cases (clause 14).

The most substantive changes to the Uninsured Drivers Agreements appear to be:

  • deletion of clause 7 (which excluded liability for damage to a vehicle which was also uninsured) This means that insurers handling a claim on behalf of the MIB against an uninsured motorist will no longer be able to refuse to meet a claimant’s vehicle damage claim where that vehicle is also uninsured.
  • Deletion of clause 9 (which excluded terrorism from the scope of events covered) meaning that insurers handling claims on behalf of the MIB will be liable to meet claims against motorists who cause death, injury or property damage in the course of terrorist activity. Given recent terrorist events involving vehicles across Europe, this has the potential to be significant for motor insurers.

The Court of Appeal is expected to deliver judgment shortly in Cameron v Hussain & Ors in which the Claimant has pursued the unidentified driver of an ‘insured’ car in an attempt to obtain a judgment which the insurer will have to satisfy under s.151 of the RTA 1988.

If the Claimant is successful this could lead to other such Claimants looking to pursue “unidentified” drivers of “insured” vehicles in the courts rather than making a claim under the Untraced Drivers Agreement in order to obtain higher recoverable costs.

We will of course report once that Judgment is released.

In the meantime the new Untraced Drivers Agreement and the supplemental Uninsured Drivers Agreement are available at:

https://www.mib.org.uk/making-a-claim/claiming-against-an-untraced-driver/untraced-drivers-agreements/

https://www.mib.org.uk/making-a-claim/claiming-against-an-uninsured-driver/uninsured-drivers-agreements/

Posted in After The Event 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
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