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Looking ahead

January 2015

An update on forthcoming cases, consultation responses and key developments to look out for, including the latest on:

- New appeals and judgments to watch out for
- Government response to court fees consultation
- Social Action, Responsibility and Heroism Bill soon to become law
- Two new Scottish consultations
- Insurance Bill

Forthcoming cases

Supreme Court

Mesothelioma: Recovery of Medical Costs Asbestos Diseases (Wales) Bill Last May the Supreme Court heard submissions on whether the National Assembly for Wales has the power to enact the Recovery of Medical Costs Asbestos Diseases (Wales) Bill, passed in November 2013. The Counsel General referred the Bill to the Supreme Court in December 2013 following argument from the insurance industry. The Supreme Court was due to hand down judgment on 3 December but this has been postponed for all the Justices to consider further written statements from the parties.

Mesothelioma: insurance Last July the Supreme Court heard the case of International Energy Group v Zurich Insurance on whether, under an employers’ liability insurance policy, an insured is entitled to an indemnity from an insurer for the entirety of its outlay in respect of a claim brought against it for mesothelioma by an employee, or only a proportion of its outlay based on the period for which the insurer provided cover. The case has now been relisted for 27/28 January before an increased panel of seven Justices.

Costs: additional liabilities The costs challenge in Coventry v Lawrence returns before a seven-Justice Supreme Court panel in February following Lord Neuberger’s comments in July that the respondents’ liability for costs under the recovery regime may be inconsistent with their right to a fair trial under Art. 6 ECHR. The Supreme Court adjourned the issue to allow the government to intervene.

Employers’ liability: vicarious liability The Supreme Court will hear the case of Mohamud v WM Morrison Supermarkets Plc in 2015. The claimant was assaulted by a Morrison’s employee and was unsuccessful in his claim both at first instance and in the Court of Appeal. Judgment is awaited See DWF update on CA decision

New Professional negligence On 3 February the Privy Council will hear the case of Maharaj and Ors v Johnson and Ors (Trinidad and Tobago) in which the issue is when time starts to run for limitation purposes when a professional gives negligence advice.

New Supreme Court: permission to appeal The Supreme Court has recently published its PTA applications for December. Of note is that permission to appeal has been granted in part in the case of The Mayor's Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd and Ors arising from the 2011 riots.See Supreme Court PTA applications

Court of Appeal

New Personal injury quantum: Ogden The Court of Appeal will hear Billett v Ministry of Defence in June. This case concerns the assessment of a claim for future loss of earnings using the Ogden Tables. See DWF update on HC decision  

Capacity: retainer Last month it was reported that the Court of Appeal has upheld the first instance decision in Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust that the intervening incapacity of a client does not terminate the retainer. The court’s written reasons are due to be handed down on 27 January.

Motor insurance: EU obligations The DfT is appealing the High Court’s decision from June in Delaney v The Secretary of State for Transport in which the claimant was awarded Francovich damages on the basis that the exclusion of the MIB's liability to passengers known as the "crime exception" was in breach of EU obligations. The hearing is due to take place on 10/11 February 2015.

Part 36: withdrawal of offer In March the Court of Appeal will hear Evans v Royal Wolverhampton NHS Foundation Trust in which the defendant attempted to withdraw a Part 36 offer within the 21 day period for acceptance and a without-notice order permitting the defendant to do so was set aside.

Portal claims: direct offers Last month the Gazette reported that the case of Gavin Edmondson v Haven Insurance is going to the Court of Appeal. In August the High Court held that the insurer had not acted unlawfully when contacting claimants direct to make offers of settlement. Read more

Consultations

New Court fees increase: government response on enhanced fees In December 2013 the MoJ consulted on proposals to increase court fees with the aim of the Court Service becoming self-funding. The government responded to the first part of the consultation last year and went ahead with proposals to increase fees to reflect the actual cost of providing the service. The second part of the consultation proposed “enhanced fees” whereby parties in certain situations would be expected to contribute more than the cost of providing the service. The rationale was that those who use the courts should make a greater contribution where they can afford to do so. The government has finally responded to this part, announcing plans to increase fees for all claims valued at over £10,000 so that the court fee is 5% of the amount of the claim subject to a maximum fee of £10,000 Read Simon Denyer’s in-depth analysis

The government has also issued a further short consultation in relation to proposals to increase application fees. This includes proposals to raise the fees for a general application in civil proceedings: to £100 for a consent application (from £50) and £255 for an application on notice (from £155). The consultation closes on 27 February 2015. Read more  

New Scotland: draft personal injury bills MSPs have launched consultations on two draft bills. The proposed Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill looks to repeal s.69 of the Enterprise and Regulatory Reform Act. The consultation closes on 31 March. The proposed Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill seeks to enable NHS Scotland to recover the costs of care and treatment of mesothelioma suffers from any compensator. The consultation closes on 30 March. Read more on the asbestos bill in our update.

The following consultations are awaiting official responses:

Rehabilitation code: Following its call for views on the current Rehabilitation Code, the IUA-ABI Working Party announced late last year that it hopes to make available for consideration a draft of the revised Code in March 2015 with a view to publishing the final version by the end of June. Read more in our update Draft Rehabilitation Code to be published in spring 2015

Reform of the Riot Damages Act In response to the August 2011 riots and subsequent report by Neil Kinghan in September 2013, the Home Office held a consultation on proposed changes to the Riot (Damages) Act. A new bill would reform the existing 1886 Act, improving and modernising the way compensation is paid to individuals and businesses that experience losses or damage to property during riots. The main elements of the bill include the placing of a cap on payments to very large businesses and their insurers and the establishment of a Riot Claims Bureau to handle claims. The consultation closed on 1 August and the ABI published its response voicing concern over the proposals and arguing that state support for riot victims needs to be maintained not curtailed. See ABI press release. The government’s response is awaited.

Pre-action protocols As part of its ongoing work on updating the pre-action protocols last year the CPRC consulted on proposed changes to the pre-action protocols for personal injury, judicial review and debt claims. The Committee’s intention is for the revised protocols to come out as a group at the same time as a revised Pre-action Conduct Practice Direction.

Both discount rate consultations The first consultation on the methodology in setting the discount rate closed in October 2012 and the second, on the legal framework closed in May 2013. On 26 August it was revealed that the Secretary of State, Chris Grayling, had decided to appoint a panel of three experts to prepare a report giving expert investment advice to use within the discount rate review. The three experts are to be an expert in the financial management of investments including as to what investment advice and services are provided to claimants; an actuary who can deal with issues regarding the rate; and an academic who knows the workings of the financial services market including aspects relevant to the economic cycle. The panel was initially expected to be appointed by 22 September and then in the second half of October but there is still no news on the appointment.

Health & Safety at Work Act 1974: self-employed workers Following recommendations made by Professor Löfstedt, the HSE is consulting on proposed amendments to section 3(2) HSWA1974 to exempt certain self-employed persons from health and safety law. The consultation closed on 31 August. Find out more about the consultation including the draft amendment.

Also on the horizon...

Whiplash reforms Last month the government provided more detail on the formation of MedCo Registration Solutions and some explanation of the process for requisitioning expert evidence so that from 6 April only registered experts will be able to provide initial reports . This month Nigel Teasdale DWF’s head of Motor and Fraud and MedCo director looks at the work ahead in his update MedCo directors take the wheel

New Social Action, Responsibility and Heroism Bill The beginning of January saw SARAH’s Third Reading in the House of Lords and the agreement of a small amendment. Subject to the tying up of what are now only loose ends, and notwithstanding sustained criticism throughout the process SARAH will become law within the remaining four months of this Parliament.   Read more on the significance of this in Simon Denyer’s recent update.

New Mesothelioma claims: government response to Justice Committee inquiry In December the Justice Select Committee published the government’s response to its July report confirming that it will not be ending the exemption in the application of LASPO provisions on recoverability to mesothelioma claims at this time. A further review of the likely effects of the no-win no-fee reforms on mesothelioma claims will be carried out in due course. Read more in our update

New Criminal Justice and Courts Bill: royal assent awaited We have been following the progress of the clause which introduces a range of provisions where a claim for personal injury is found to be fundamentally dishonest, including dismissal of the whole claim. At the House of Lords report stage the clause was debated and survived unscathed despite attempts to water down its effects. The bill also contains new rules against inducements to make personal injury claims and in the Lords these were amended to cover inducements offered through third parties. Over the last month the bill has been through the Ping Pong stage without any further amendment to these clauses and a date is to be scheduled for the bill to receive royal assent.  

Deregulation Bill: self-employed – motor insurance - HMRC records A few provisions in this bill potentially have an impact on insurers. Clause 1 amends s.3 HSWA1974 to exempt the self-employed whose work activities pose no potential risk of harm to others from health and safety law (from Löfstedt). Clause 9 amends s.147 RTA 1988 so that delivery of the motor insurance certificate or security is no longer required for the policy or security to be legally effective and also removes the requirement for policyholders to return their certificate of insurance or security if a policy is cancelled mid-term. And the newly introduced clause 67 gives HMRC the power to disclose information in fatal claims without the need for a court order. This measure is designed in particular to improve the process of dealing with mesothelioma claims. Whilst waiting for this measure to go through Masters McLeod and Eastman have issued a practice note for the procedure to be used HMRC practice note (pdf). The bill has reached the report stage in the House of Lords. We continue to monitor progress of the bill which you can also follow here

Insurance Bill: insurance contracts – Third Party (Rights against Insurers) Act 2010 The Insurance Bill was introduced to Parliament on 17 July. It incorporates some, but not all of the proposals in the Law Commissions’ draft Insurance Contracts Bill and also makes amendments to the Third Parties (Rights against Insurers) Act 2010, so that that Act can be brought into force. The Special Public Bill Committee has completed its scrutiny of the bill, reinstating a clause on warranties whereby insurers can only deny cover for breaches which are relevant to the risk. The bill has now moved to the House of Commons in anticipation of which a useful Commons Library Research Paper has been published outlining the present position.

Review of Part 36 offers Following the CPRC’s comprehensive review of Part 36, the 78th update to the CPR contains the amendments which will come into force on 6 April 2015.  The changes aim to simplify the rules as far as possible and address the issues which have arisen in the caselaw over the years. As expected the amendments address Part 36 offers in split trials, sunset clauses, counterclaims and offers which make no real concession. Read new Part 36 in Schedule 1 to The Civil Procedure (Amendment No. 8) Rules 2014

Civil Justice Council (CJC) to look at Damages Based Agreements revisions The government has asked the CJC to take a detailed look at some technical revisions to the regulations for DBAs. Notably though, and to the Lord Dyson’s disappointment the government has decided not to permit ‘hybrid’ DBAs. In the last month the CJC has published the membership of its new working group on Damages based agreements (pdf)

Guideline hourly rates In July the Master of the Rolls announced his decision following the review of the guideline hourly rates and the main headline was that no changes to the actual rates themselves should be made at this time, because of fundamental shortcomings in the available evidence. The issue has been returned to the MoJ for further thought but it is difficult to know how they will take it forward given the imminent General Election. In a recent speech to the Professional Negligence Lawyers' Association Mr Justice Foskett indicated that a meeting was held in mid-October between the Master of the Rolls and representatives of the MoJ and the Law Society. The outcome of further consideration of the position is awaited.  Read the speech here

Contact

For further information please contact Alex Fusco, Professional Support Lawyer on 0161 603 5211.

By Alex Fusco

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

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