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Looking ahead

November 2015

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

- New appeals and judgments to watch out for.
- An open letter from FOIL about mesothelioma claims
- Developments from MedCo and the Insurance Fraud Taskforce.
- Westminster Hall debate on Personal Injury Fraud
- ASHE 2015 Provisional Results
- Civil Courts Structure Review

Forthcoming cases

Supreme Court

Employers’ liability: vicarious liability The Supreme Court heard 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. Judgment is now awaited.

Employers' liability: breach of duty / evidence A hearing took place in October in the Scottish case of Kennedy v Cordia arising from an accident in which a home carer slipped on a snow covered path. The issues concern the PPE at Work Regs 1992, breach of duty and the admissibility of certain evidence. Judgment is awaited.

Relief from sanctions: compliance with unless order The hearing in Thevarajah v Riordan & Ors took place on 17 November. The issue is whether the Court of Appeal erred in holding that late compliance with an "unless order" could not amount to a material change of circumstances so as to justify the variation under the CPR 3.1(7) of an order debarring the appellants' defence. Judgment is awaited.

New – Privy Council: material contribution On 18 November the Privy Council heard the appeal of Williams v The Bermuda Hospitals Board (Bermuda).The issue in this clinical negligence case is whether the Court of Appeal for Bermuda wrongly applied the “material contribution” test of causation.

Supreme Court cases awaiting developments We are awaiting further details for a number of 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.

  • 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.

  • 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 on the liability of a landlord for the injuries of a sub-tenant sustained in a tripping incident on a path outside a block of flats.

  • 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.

  • Moreno v Motor Insurers Bureau on the question of applicable law in a personal injury claim brought against the MIB following an RTA in Greece.

Court of Appeal

Portal claims: direct offers The case of Gavin Edmondson v Haven Insurance was heard last week (11 November). 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.

New – Procedure: service of claim form In Barton v Wright Hassall Solicitors the question is whether ineffective service by email should be deemed to be good service given the claim was effectively brought to the notice of the defendants. The appeal is due to be heard on 7/8 March 2016.

New – Part 36: costs Webb v Liverpool Women’s NHS Foundation Trust was a clinical negligence case arising out of the events which occurred during the birth of the claimant. We suspect though that the appeal relates to the subsequent costs judgment. Although the claimant failed on a number of specific allegations, she recovered damages in full and beat her own Part 36 offer. The judge made a percentage costs order to reflect the failure to establish all the allegations but awarded the claimant Part 36 rewards in full. The hearing is due to take place on 15/16 March 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

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 hearing has now been listed for 19/20 October 2016.

County Court

New - Costs: assignment of CFA Costs barrister Andrew Hogan has reported that the claimant’s appeal and the defendant’s cross appeal in the case of Jones v Spire Healthcare Limited concerning the assignment of a conditional fee agreement will be heard in the Liverpool County Court on 16 December 2015.

Consultations

Court fees increase: Justice Committee Inquiry In July the House of Commons Justice Committee announced an inquiry into the effects of the introduction and levels of increased fees across criminal courts, the employment tribunal and the civil courts. From a civil justice point of view the Committee was 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 was 30 September but the inquiry still appears to be taking submissions, even though it has already held oral evidence sessions in relation to the criminal courts charge and employment tribunal fees. DWF has responded. Read more on the Justice Committee website. 

Update - Fixed costs in clinical negligence claims In a recent response to a written question the Department of Health has confirmed that the consultation on Fixed Recoverable Costs in clinical negligence claims will now be published in early 2016. Read more in Simon Denyer's update

The following consultations are awaiting official responses:

Now closed - Claims Management Regulation In the Summer Budget George Osborne, announced a major review of the regulation of CMCs, as well as an intention to impose a cap on the fees that they can charge.  The review which is being taken forward jointly by the Treasury and the MoJ is headed by Carol Brady of the Claims Management Regulation Board. A call for evidence was launched on 2 October and closed on13 November. DWF has responded.

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 consultation closed on 18 September and DWF responded. Read more in our update.

Court fees increase: government response and further consultation In July the government announced it would 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) (these changes are not yet in force). At the same time it announced 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 closed on 15 September and DWF submitted a response. Read more on the consultation webpage and in Simon Denyer's update

MedCo: call for evidence The MoJ’s Call for Evidence relating to the operation of the MedCo Portal closed in September. Stakeholders were asked for views on the registration of MROs, the formulation of the search offer and the statement on financial links. DWF submitted a response to the consultation and we await the government’s response. Read more in Nigel Teasdale's update

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 were 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 sought 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

Discount rate consultations The process of reviewing the discount rate and the methodology in setting it began in August 2012. 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 September 2014 but it only began its considerations in March. The panel was asked to provide its advice within six months, so should by now have reported to the Lord Chancellor. However we understand that the MoJ is still awaiting the report and cannot give an indication of when it is due or whether it will be published.

Legislation

Enterprise Bill: late payment of insurance claims A new Bill was presented in the House of Lords on 16 September. Last year, as part of its project on Insurance Contract Law Reform, the Law Commission made recommendations, including provisions in relation to remedies for late payment of insurance claims. Those provisions were considered unsuitable for the special parliamentary procedure for Law Commission bills. However, the government did express its support for the provisions and said it would look to bring them forward at a future legislative opportunity. The Enterprise Bill will now include those recommended clauses. If passed, it will see the Insurance Act amended to include these provisions. You can follow the Bill’s progress here and read more about the new Bill in our update from Jacquetta Castle and Robert Goodlad 

Update - Third Parties (Rights against Insurers) Act 2010 The Insurance Act passed earlier this year made amendments to the TP(RAI)A 2010, to enable it to be brought into force. It was expected to be in force by autumn 2015 but the enabling legislation has yet to be published and the Law Commission has told Practical Law that it hopes it will come into force by April 2016.

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 Member's 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 on 4 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. Another recent ministerial response to a written question about invalid vehicles suggests that an impact assessment is currently being prepared and that the government will consult before making any changes to the legislation but gives no further clues as to the timetable.

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

Negligence and Damages Bill A new Private Member's Bill has been introduced by Middlesbrough MP Andy McDonald and is supported by APIL. Part 1 of the Bill seeks to place people who suffer psychiatric harm after witnessing the death or injury of others on a similar footing in terms of their entitlement to compensation, to those suffering direct physical harm. Parts 2 and 3 aim to repeal the Fatal Accident Act 1976 which currently allows payment of only a fixed sum for bereavement damages and to introduce a new approach similar to that already taken in Scotland, providing for different amounts to be awarded and with increased categories of people and relationships eligible for compensation. Whilst these types of Bill rarely become law, we will be monitoring progress. The second reading is due to take place on 4 December and you can find more information on the Bill's web page.

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...

Update MedCo Following audits of current Tier 1 MROs it has been reported that a number of them will be reassigned to Tier 2, having failed to meet MedCo’s qualifying criteria. MedCo will now deal with any appeals, and on completion of the appeals process will confirm the number of Tier 1 MROs that have been reclassified. To ensure that MedCo users receive a consistent level of service, MedCo has now implemented minimum service standards which must be met by Medical Experts and Non-National MROs. High Volume, National [HVN] MROs continue to be bound by their own minimum standards and service levels as defined by MedCo. The Medical Expert and Non-National MRO minimum service standards constitute part of the MedCo User Agreement which all Medical Experts and MROs are bound to adhere to. A copy of the minimum standards can be accessed via the MedCo mailshot. On accreditation, Bond Solon and DocSlot have been appointed to carry out the accreditation and experts have now started that process. It is estimated there are 30-35 hours of learning time and as a result the date by which experts must be accredited has now been extended to February 2016

Update Insurance fraud taskforce After publication of the first tranche of the Taskforce’s potential recommendations, the second and final tranche of potential recommendations were discussed at a stakeholder roundtable last month. A summary of the discussion can be found on the Insurance Fraud Taskforce website. The Taskforce is expected to produce its final report at the end of the year, or early in 2016. 

New – Whiplash:Personal Injury Fraud debate In the meantime, a Westminster Hall debate took place yesterday (18 November 2015) to highlight the issues surrounding fraudulent and exaggerated whiplash claims. Discussion points included the proliferation of nuisance calls, the relatively lenient penalties in this area and the treatment of whiplash claims around the world.  Recommendations from the floor included a complete ban on outbound calling to solicit personal injury claims, introducing a minimum threshold for simple whiplash claims and replacing cash compensation with rehabilitation, a reduction of the limitation period in minor whiplash claims to 12 months, increasing the small claims track to £5,000 and ensuring there is objective evidence of whiplash. Caroline Dinenage speaking on behalf of the government outlined the steps taken to date in the whiplash and fraud arenas and indicated that the Insurance Fraud Taskforce was looking at the issues of increasing the small claims track limit and reducing the limitation period. You can read more in the transcript of the debate and the House of Commons briefing pack.

New - ASHE 2015 The Annual Survey of Hours and Earnings provides information about the levels, distribution and make-up of earnings and hours worked for employees in all industries and occupations. The tables contain UK data on earnings for employees by sex and full-time/part-time workers. The data for care worker earnings is used when calculating awards for future care and informs the level of periodical payments. On 18 November, the Office for National Statistics published the 2015 Provisional Results and the 2014 Revised Results 

Rehabilitation code The IUA-ABI Working Party completed its review of the Rehabilitation Code by publishing the updated Code at the end of September. As expected, the Code now caters for two levels of claim: one level incorporates moderate, severe and catastrophic injuries and the other, for the first time, lower-value injuries worth up to £25,000. Also for the first time the working party has published a Guide for Rehabilitation Case Managers and people who commission them. The Guide is separate from the Code but is intended to complement it. The Code for the higher value injuries can be used immediately but the lower-value injuries part will be operational from 1 December. The Code can be found on the IUA website and is referred to in the Pre-Action Protocol for Personal Injury claims.

Motor Insurers' Bureau: new agreements In February 2013, the Department for Transport consulted on a review of the Uninsured and Untraced Drivers Agreements. We have previously reported on the new Uninsured Drivers Agreement which came into force for accidents occurring on or after 1 August 2015. The DfT also 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

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. In late July the MoJ announced that in response to those concerns it had asked the Civil Justice Council to consider the issue and make recommendations. The terms of reference have now been published. They are to consider how a fixed costs regime for NIHL cases might work and how the handling of these claims might be improved. The group is aiming to prepare an initial report by November with a final report by April 2016. 

Spending Review: IIDB In the Summer Budget, the government indicated that it is considering whether 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 in November. 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.

Update - 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 this government will take this forward. In the meantime FOIL has written an open letter to the MoJ highlighting that the ongoing exemption is prejudicing mesothelioma claimants who are not receiving the 10% uplift on general damages and whose claims are not settling quickly. FOIL recommends a mesothelioma portal with an accompanying fixed costs regime to expedite straightforward claims.

Civil Justice Council (CJC) to look at Damages Based Agreements The government's response to the CJC review of DBAs is awaited. In September the CJC made a number of recommendations but the main issue of interest going into the review was the government’s decision not to permit hybrid DBAs, and in particular concurrent hybrid DBAs. Under this type of hybrid “a law firm receives concurrent funding via both a DBA and via some other form of retainer (e.g. discounted hourly rates), in the event of the claim’s success; and receives discounted hourly rate fees in the event of the claim’s failure.” The Working Group was divided on whether these should be allowed but it concluded that “it was a policy decision which was ultimately one for the government” and “the government should be encouraged to evaluate the arguments in favour”. Read more in the CJC media release

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.  In the summer the Committee approved a number of those proposals and the sub-committee was going to prepare amendments to the rules for further consideration. The redraft is due before the Committee for the November 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

New - Civil Courts Structure Review In July, the Lord Chief Justice and the Master of the Rolls asked Lord Justice Briggs to carry out an urgent review of the structure of the courts which deliver civil justice. The reason for the urgency is the planned reformed programme by HMCTS which will focus on the digitisation of court processes, on a greater use of Delegated Judicial Officers to carry out tasks currently carried out by judges, and on the creation of an on-line court for the resolution of lower-value disputes. Briggs LJ has been asked to provide an interim report by the end of year. In light of this deadline he has carried out a short, informal consultation with selected stakeholders on the above issues and also on the number of civil courts and routes of appeal. He will carry out a formal consultation between his interim and final reports. Read more on the Judiciary website

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 recommended a formal pilot of ODR as soon as 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

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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