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Looking ahead

August 2015

An update on forthcoming cases, consultations, legislation and key developments, including:

- New appeals and judgments to watch out for
- Government action on NIHL claims
- Changes to the costs management process
- MoJ review of the MedCo framework 

Forthcoming cases

Supreme Court

Employers’ liability: vicarious liability The Supreme Court will hear Mohamud v WM Morrison Supermarkets Plc and Cox v Ministry of Justice in October.  In Mohamud 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. See DWF update on CA decision. In Cox the MoJ was held liable for the actions of a prisoner employed as kitchen worker who injured the claimant catering manager.

Update Personal injury: applicable law In April the High Court found itself bound by the Court of Appeal decision in Jacobs v MIB (2010) and concluded that damages were to be assessed under English law in a claim brought against the MIB following an RTA in Greece. After Gilbart J allowed a leapfrog appeal of the preliminary issue, the Supreme Court has now granted permission to appeal. Moreno v Motor Insurers Bureau.

New Recent Supreme Court PTAs In addition to Moreno the Supreme Court has granted permission to appeal in the following cases:

  • Hayward v Zurich Insurance Company Plc where the Court of Appeal rejected the insurer’s attempt to set aside a personal injury settlement when the claimant’s fraudulent exaggeration of his injury later came to light.

  • Edwards v Kumarasamy in which the Court of Appeal held a landlord of one flat in a block liable when the claimant sub-tenant tripped on an uneven path outside the flats despite the landlord having no notice of the defect.

  • Permission has been granted in part in Google v Vidal-Hall & Ors which concerns data protection and compensation rights and relates to a dispute over the user information through cookies via use of the Apple Safari Browser. Read more in the Supreme Court's comments and the DWF article on the implications of the Court of Appeal decision. 

Other Supreme Court cases: hearing details are awaited in the following cases where permission to appeal has been granted in recent months

  • The Mayor's Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd & Ors arising from the 2011 riots.

  • Thevarajah v Riordan & Ors on relief from sanctions

  • Knauer v Ministry of Justice on the quantification of future losses in a fatal claim

  • Versloot Dredging BV v HDI Gerling Industrie Versicherung AG on the question of whether an insurer could resist a claim due to the use of a fraudulent device

  • Impact Funding Solutions Ltd v AIG Europe Insurance Ltd on whether professional indemnity insurers have to indemnify solicitors in respect of loans taken out to cover the cost of disbursements

  • FirstGroup Plc v Paulley about the Equality Act 2010 and the reasonable adjustments a bus company is required to make in order to accommodate disabled wheelchair users.

Court of Appeal

Abuse: vicarious liability An appeal and cross appeal in NA v Nottingham County Council was heard in July. The case concerns vicarious liability and non-delegable duties in relation to abuse. Read more in Andrea Ward's update on HC decision. Judgment is awaited.

Part 36: withdrawal of offer In Evans v Royal Wolverhampton NHS Foundation Trust 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. The adjourned hearing is due to take place on 5/6 October 2015.

Update Portal claims: direct offers The case of Gavin Edmondson v Haven Insurance appears to have been brought forward to 11/12 November 2015. In August 2014 the High Court held that the insurer had not acted unlawfully when contacting claimants direct to make offers of settlement. 

Disease: lung cancer The appeal in Heneghan v Manchester Dry Docks Limited & Ors will take place on 18/19 January 2016. This is a claim for damages for asbestos related lung cancer where the total exposed share of the six defendants sued is 35.2%. The question is whether each defendant is liable for the damages in full or for only a portion of the damages.

Procedure: second actions and abuse of process Padley v CDI Anderselite Ltd concerns the issue of permitting a second action to proceed after an identical action has been struck out for failing to comply with an unless order, where no application for relief from sanctions in respect of that first action is made or pursued. A hearing will take place on 16/17 February 2016.

Costs: fixed costs Permission has been granted for a leapfrog appeal in Bird v Acorn.  The question is which stage of fixed costs should apply when a case drops out of the portal, is listed for disposal and then settles. The case has been given a hear-by date of 22 February 2016.

Credit hire: daily rate In Thwaites v Aviva the claimant was entitled to a hire vehicle under the auspices of an “Ooops policy”. The appeal is to be heard on 7/8 April 2016 and concerns the question of whether there is still a duty to mitigate in subrogated claims and the appropriate daily rate of hire.

Motor: ex turpi causa In Beaumont & Anr v Ferrer the High Court rejected the personal injury claims of two claimants who were seriously injured whilst attempting to fare jump a taxi. The case is now going to the Court of Appeal on 28/29 June 2016. See the DWF update on the HC decision 


Court fees increase: Justice Committee Inquiry The beginning of March saw the new increased fees come into force. The Law Society then announced it would not pursue the judicial review but would continue to monitor the effect of the increases on access to justice. On 21 July the House of Commons Justice Committee announced its decision to hold an inquiry into the effects of the introduction and levels of the fees. From a civil justice point of view the Committee is particularly interested in hearing about the effects on access to justice and the competitiveness of the legal services market in England and Wales in an international context. The closing date for written submissions is 30 September. Read more on the Justice Committee website

Court fees increase: government response and further consultation On 22 July the government responded to its February consultation which included proposals to increase application fees. It will go ahead with fee increases for general applications in civil proceedings: to £100 for a consent application (from £50) and £255 for an application on notice (from £155). At the same time it announced another consultation on further proposals to increase fees. These include: an increase in the maximum fee for money claims from £10,000 to at least £20,000 (excluding personal injury and clinical negligence claims); and a general uplift of 10% to a wide range of fees in civil proceedings. The consultation closes on 15 September. Read more on the consultation webpage and in Simon Denyer's update

MedCo: call for evidence Last month the MoJ announced a Call for Evidence relating to the operation of the MedCo Portal. It focuses on registration of MROs, the formulation of the search offer and the statement on financial links. The MoJ has this month held a number of workshops for key stakeholders to discuss the issues. The consultation closes on 4 September. Read more in Nigel Teasdale's update

Scotland: limitation in abuse claims In May the Scottish government announced its intention to legislate to lift the three year time bar on civil claims for damages arising from historic sexual abuse.  Removing the three year time limit could see previously rejected child abuse claims being revived. The government is consulting over the summer and draft responses are to be submitted by 18 September with a draft bill promised by June 2016.  Responses from Holyrood suggest the change will attract cross-party support.  DWF are involved in consulting and submitting a response. 

The following consultations are awaiting official responses:

Insurance contract law reform: insurable interest The Law Commission and the Scottish Law Commission are revisiting the issue of Insurable Interest, having previously made proposals for reform in 2008 and 2011. They have been asked to return to the issue due to the increased numbers of requests to write policies which include cover for children, cohabitants and to insure ‘key employees’ for substantial amounts. They are seeking views on their updated proposals for indemnity and life insurance, published in a new issues paper. The consultation period ended on 28 June 2015. Read more in our recent update

Scotland: draft personal injury bills We have been awaiting the outcomes of the two recent MSP consultations. The proposed Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill would reverse the effect of s.69 of the Enterprise and Regulatory Reform Act 2013 by enabling all employees to rely on the European Directives. We understand from FOIL that this Bill has now run out of time and has been dropped. The proposed Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill would enable NHS Scotland to recover the costs of care and treatment of victims of asbestos-related disease from compensators. DWF responded to this consultation and the outcome is still awaited

Rehabilitation code Last year the IUA-ABI Working Party announced a review of the Rehabilitation Code and sought suggestions for its improvement. In May the Working Party hosted a meeting to obtain feedback from stakeholders on a draft version of the updated Code. The Working Party took away comments and suggestions from the meeting and a final document should be ready for publication shortly. Read about the rewritten Code in Carole Chantler’s update

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. In August 2014 it was revealed that a panel of experts was to be appointed to prepare a report giving expert investment advice to assist with the review. The panel was initially expected to be appointed by 22 September 2014 but the appointment process took longer than anticipated.  The panel began its considerations in March and has been asked to provide its advice within six months. Michael Gove who is new to the issue will then need time to consider it, so a decision this year seems unlikely.


Deregulation Act 2015: self-employed Only one of the provisions relevant to insurers has still yet to come into force:

Insurance Act & Third Parties (Rights against Insurers) Act 2010 The Insurance Bill introduced to Parliament last July incorporated some but not all of the proposals in the Law Commissions’ draft Insurance Contracts Bill and also made amendments to the TP(RAI)A 2010, to enable it to be brought into force. Most of the Insurance Act is expected to be in force by autumn 2016 but the TP(RAI)A 2010 is expected to be in force by autumn 2015. Read more in our update The Insurance Act 2015 is here…or almost here. Lloyd’s Market Association and the International Underwriting Association have also recently published “A practical guide to changes in UK Insurance Law” which you can find here  

Reform of the Riot Damages Act In March the coalition government responded to its consultation on proposed changes to the Riot (Damages) Act and published its draft Riot Compensation Bill. The key provisions in the Bill include:

- Basing the test for a riot solely on the riot definition contained in the Public Order Act 1986.
- Introducing a cap of £1 million on the amount that can be paid out in any single claim
- Including limited cover for motor vehicles
- Clarifying that consequential loss is not recoverable.

The Bill went no further following the dissolution of Parliament but in June the government indicated its intention to take it forward.The Bill has now been presented as a Private Members' Bill and has had its first reading. No further Bill documents have been published at this stage and a second reading is due to take place in December. You can follow the Bill's progress here

Motor insurance: implications of ECJ Vnuk ruling for UK legislation In March the Transport Select Committee published a letter from Transport Minister Robert Goodwill dated December, confirming the government's intention to amend the Road Traffic Act to comply with the judgment. See letter from Robert Goodwill MP (pdf) and our article discussing the judgment’s implications. A recent ministerial response to a written question indicates that the DfT are in regular dialogue with the European Commission about the challenges generated by the judgment but gives no further clues about the next steps. A consultation before the end of the year seems likely.

Scotland: Fatal Accident Inquiry Bill The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Bill (the “Bill”) was published on 20 March 2015 and is set to strengthen the current Fatal Accident Inquiry (FAI) process in Scotland. The Bill seeks to implement the remaining recommendations put forward by Lord Cullen following his Review of Fatal Accident Inquiry Legislation in 2009. You will find the Bill documents here  and you can read more in our update

Mesothelioma (Amendment) Bill In 2014 Lord Alton introduced a Bill seeking to amend the (then) Mesothelioma Bill to raise funds to research the disease by way of a 1% levy upon insurers.  The Bill got no further than the first reading. In March of this year, Labour minister Mike Kane introduced a new version of the Bill which also went no further, when Parliament was dissolved. The Bill is now back, introduced by Lord Alton again as a Lords Private Members’ Bill. You can follow its progress here

Also on the horizon...

Whiplash reforms The AskCUEPI search went live on 1 June. For all new whiplash claims submitted to the Portal it is obligatory to carry out a previous claims search via AskCUEPI. Ahead of this new process being implemented, in order to access AskCUEPI claimant solicitors were obliged to register via the MIB Services registration portal. A search of AskCUEPI will reveal a claimant’s previous claims history, enabling the solicitor to consider whether they should continue to act. Where a search has not been carried out before the CNF is submitted to the Portal, the time limits will not start to run, until the search is carried out. Nigel Teasdale discusses the AskCUEPI search and other potential areas for reform in his article here

Update MedCo Following the MoJ statement (opens in pdf) last month in response to certain behaviours that were emerging in the MRO market, the MoJ has now announced its intention to carry out a review of the MedCo framework. It has issued a Call for Evidence which closes on 4 September. It focuses on registration of MROs, the formulation of the search offer and the statement on financial links. Both Judicial reviews are ongoing and we now understand they will be heard on four consecutive days at the end of October. Read more in Nigel Teasdale's update

Update Insurance fraud taskforce In March, the Taskforce asked stakeholders to consider a number of questions covering a range of topics, from use of data, to how the industry could better deliver its message about insurance fraud to the consumer. The Taskforce will now hold two stakeholder roundtable meetings in September and October to look at the Taskforce’s potential recommendations ahead of its final report which is due at the end of this year.

Motor Insurers' Bureau: new agreements In February 2013, the Department for Transport consulted on a review of the Uninsured and Untraced Drivers Agreements. Last month, the DfT announced that a new Uninsured Drivers Agreement would come into force for accidents occurring on or after 1 August 2015. The changes are mainly aimed at simplifying the process that a claimant must follow in order to bring a claim, but there also significant changes to the subrogated claims exception clause and the clause that deals with claims advanced by passengers travelling in uninsured vehicles. The new agreement has already received criticism including the contention that certain clauses breach EU law. At the same time, the DfT published a Supplementary Agreement to the Untraced Drivers Agreement, although work continues on a new Untraced Drivers Agreement, with a further DfT response expected in due course. The new agreements can be found on the MIB website

Update NIHL claims: government action In June the ABI published its report Tackling the Compensation Culture: Noise Induced Hearing Loss, improving the claims system for everyone which highlighted concerns about the increasing numbers and cost of NIHL claims. Late last month the MoJ announced that in response to those concerns it had asked the Civil Justice Council to consider the issue and make recommendations, although the terms of reference of the review have yet to be publicised. This announcement was followed soon after by news of the first fine issued under the new claims management regulation powers. The Hearing Clinic, based in Derby, was fined £220,000 following hundreds of complaints from people who had received speculative calls about NIHL claims. 

Budget: IIDB review In the recent Budget, the government indicated that it is considering where employers and insurers should play a greater role in providing support for those who suffer injury in the workplace. The government will report further at the Spending Review later this year. As part of its Election coverage in March, the BBC reported that it had seen leaked emails suggesting that Industrial Injuries Disability Benefit could be replaced by an insurance policy for employers.

Mesothelioma claims: LASPO funding provisions Late last year the Justice Select Committee published the government’s response to its July report. The government decided not to end the exemption from the application of LASPO provisions on recoverability to mesothelioma claims. They said a further review of the likely effects of the funding reforms on mesothelioma claims would be carried out in due course so it remains to be seen how the new government will take this forward. 

Civil Justice Council (CJC) to look at Damages Based Agreements revisions At the request of the government the CJC has been taking a detailed look at some technical revisions to the regulations for DBAs. At April’s Practical Law roadshow, Professor Rachael Mulheron provided an update on the work of the CJC. Phase one of the review involved consideration of 20 matters pertinent to the drafting of any revised Regulations. The forthcoming phase two will involve having regard to policy matters including ‘hybrid DBAs’ as it will be recalled that Lord Dyson MR was notably disappointed with the government’s decision not to permit them. The reports, when finalised, will be available on the Civil Justice Council webpage

Update Costs Budgeting and Management Following Jackson LJ’s speech in May suggesting improvements to the costs budgeting and management process, a sub-committee of the Civil Procedure Rules Committee was tasked with considering the suggestions and making proposals for the amendment of the rules.  The minutes of the July 2015 CPRC minutes show that the Committee has now approved a number of those proposals and the sub-committee will now prepare amendments to the rules for consideration at the October meeting. The agreed proposals include a general exclusion of cases relating to children from the scope of costs management; an indication in the PD that it may be appropriate to disapply costs management in cases involving a short life expectancy; and improvements to Precedent H and the use of a simplified version for cases valued up to £50,000. Interestingly the Committee also agreed that the aim should be to introduce fixed costs as soon as possible for all cases valued up to £50,000. You can read more about the recommendations in this Litigation Futures article

Guideline hourly rates Last July, following a review of the guideline hourly rates, the Master of the Rolls decided to make no changes to the rates because of fundamental shortcomings in the available evidence. In April, Lord Dyson MR announced that his further discussions with the Law Society and the Government had not materially changed the position. There is neither the funding nor the appetite for an in-depth survey, and trends in the legal services market, including technological advances and the use of proportionality and costs management, are diminishing the relevance of GHRs. He acknowledges that GHRs do retain some relevance but for the foreseeable future the current rates will remain in force. He would though like to see the wider application of fixed costs. Insurers will be disappointed that at least some rates have not been reduced, but at least they have not increased, and the potential future move to fixed costs is interesting. You can read Lord Dyson’s comments here  

Clinical Negligence: fixed costs The government has recently confirmed that a formal consultation will be launched in the autumn with the goal of establishing an appropriate level of fixed costs for lower value clinical negligence claims. Read more in Simon Denyer's recent update

Online Dispute Resolution In April 2014 the Civil Justice Council set up an advisory group to explore the role that Online Dispute Resolution (ODR) can play in resolving civil disputes valued at less than £25,000. In February this year the group published its report in which the principal recommendation is for a new three tier internet-based court service. Tier One should provide Online Evaluation to help users evaluate their problems and understand the options available to them. Tier Two should provide Online Facilitation in which trained facilitators working online can review papers and help users through a mix of ADR and advisory techniques. Tier Three should provide Online Judges who will decide suitable cases on an online basis. The report recommends a formal pilot of ODR as soon as is practicable involving an agreed selection of types of dispute, with a view to full rollout in 2017. In his first speech as Lord Chancellor, Michael Gove indicated his support for the work of Richard Susskind in this area.  Read more on the CJC’s dedicated online hub


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.