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Looking ahead

March 2017

When last month's Looking Ahead was published we were awaiting the Lord Chancellor's decision following her review of the discount rate. It arrived on 27 February and it's difficult to believe that was only a month ago given the amount of press coverage and stakeholder activity it has generated, including comment today from DWF's Nigel Teasdale in The Times (subscription may be required). 

As everyone comes to terms with the new rate of minus 0.75% remaining in force for the time being, the focus will now turn to the consultation, which will look at options to reform the framework for setting the rate. And in breaking news this morning the consultation has now been launched. It will close on 11 May with a response expected within three months of the closing date.

In the same period, the Prisons and Courts Bill, which contains the Government's proposals for whiplash process reform and the foundations for the new online court, has been rattling through the House of Commons. Having passed its Second Reading on 20 March it has now reached the Public Bill Committee stage. Separately the Justice Select Committee has launched a short inquiry to put the whiplash proposals and the proposed increase to the Small Claims Track limit under some scrutiny.

And of course there's the small matter of the triggering of Article 50 to begin the Brexit process about which you can read more in this update from DWF Head of EU/Competition Jonathan Branton.

Further details can be found below along with developments on:

• Appeals and judgments to watch out for
• Jackson LJ's review of fixed costs
• Vehicle Technology and Aviation Bill on insurance for automated vehicles
• Riot Compensation Act commencement
• Law Commission report on deprivation of liberty

Forthcoming cases

Supreme Court

Update - Insurance: professional indemnity. Judgment was handed down in AIG Europe v Woodman & Anor (aka AIG v OC320301 LLP) on 22 March. The Supreme Court allowed AIG's appeal holding that claims for the same mistake repeated across different transactions can be aggregated. Read more in our legal update

Professional negligence: accountants. The issue in Swynson Ltd v Lowick Rose is whether the Court of Appeal erred in law in holding that a lender could recover damages from its negligent adviser representing loans that had been repaid by the borrower, on the basis that the borrower's repayments were collateral to the adviser's breach of contract. A hearing took place between 21 & 24 November. Read more in our article on last year’s Court of Appeal decision.

Update - Inheritance Act disputes: wills. On 15 March the Supreme Court handed down judgment in Ilott v Mitson. The case concerned an inheritance dispute involving an estranged daughter and three animal charities, and the rules on reasonable provisions in wills for adult children. The Supreme Court allowed the charities' appeal and held that the Court of Appeal had erred in calculating the reasonable financial provision award.

Update - Professional negligence: solicitors. The case of BPE Solicitors v Hughes-Holland (aka Gabriel v Little) considered the scope of solicitors’ duties where losses relate to commercial risks. In a judgment handed down on 22 March, the Supreme Court held that loss due to commercial misjudgements was outside the scope of the solicitors' duty.

Non-delegable duties: foster carers. The case of NA v Nottinghamshire County Council concerning the abuse of a child by foster parents and the duties owed by local authorities in those circumstances took place on 8 & 9 February 2017.

Personal injury: cross border claims. The appeal in Mapfre Mutualidad Compania De Seguros Y Reaseguros SA & Anor v Keefe on whether a Spanish insured can be joined into the English proceedings already brought against the Spanish insurer, was heard on 7 March 2017.

Police: human rights. In Commissioner of Police of the Metropolis v DSD & Anor, concerning the "black cab rapist" John Worboys, the Court of Appeal upheld a first instance decision that the failure of the Met Police to carry out effective investigations into the victims' complaints amounted to inhuman or degrading treatment contrary to Article 3 of the ECHR. The Met Police are appealing and the hearing took place on 14 March 2017.

Supreme Court cases awaiting developments. We await further official details for a number of cases where permission to appeal has been granted:

  • Brownlie v Four Seasons Holidays Inc involving jurisdiction issues arising out of a fatal accident claim.

  • Gavin Edmondson v Haven Insurance which concerns an insurer engaging directly with claimants to conclude their claims which had been commenced in the Portal.

  • Robinson v Chief Constable of West Yorkshire Police which concerns the issue of liability of the police in negligence following an incident in which the claimant was injured when she became caught up in the arrest of a drug dealer. 

  • Steel v NRAM PLC is a Scottish solicitors’ negligence case concerning negligent misstatements and the existence of a duty of care in a relation to a security transaction.

  • Banca Nazionale del Lavoro SPA v Playboy Club London Ltd & Ors concerns a financial reference given by a bank to an agent acting for a club which ran a casino and whether a duty of care was owed to the club.

  • Barton v Wright Hassall involved the question of whether service of a claim form, falling short of compliance but coming to the attention of the defendant, could be validated.

  • Tiuta International Ltd v De Villiers Surveyors Ltd is a surveyors' negligence case concerning the extent of a lender's loss attributable to the second of two valuations of a property.

  • Dryden & Ors v Johnson Matthey PLC concerns exposure during employment to platinum salts and the issues of actionable injury and pure economic loss. The hearing will take place on 27 & 28 November 2017. Read more in this 12KBW article.

Court of Appeal

Insurance: road traffic accidents. The case of Cameron v Hussain & Anor was heard in the Court of Appeal in December. It involves issues of motor insurance and an unidentified driver. Judgment is awaited.

Update - Credit hire: rates evidence. On 15 March the Court of Appeal handed down judgment in Clayton v EUI Ltd and McBride v UK Insurance Ltd. Accident Exchange Ltd lost the appeals and the Court of Appeal confirmed that the approach to calculating the basic hire rate (BHR) as set out in Stevens v Equity (2015) is correct. Read more in our update.

Update - Portal claims: £400 club. In March 2016 District Judge Phillips in the Cardiff County Court ordered reimbursement of pre 2013 stage 1 costs paid by insurers after an admission of liability, but following which the cases did not proceed to stage 2. The judge granted a leapfrog appeal in Iqbal & Anor v Leek & Anor which was initially due to be heard in February but will now take place on 3 May 2017. In the meantime, it was reported last month that the Court of Appeal has invited the Law Society to intervene in the case.  

Professional negligence: gratuitous services. In Burgess v Lejonvarn a professional consultant who advised friends on a significant landscape gardening project was held to owe them a duty of care. The defendant's appeal took place on 8/9 March 2017.

Update - QOCS: claims against the MIB. In Howe v MIB it was held that a claimant who brought a claim against the MIB arising out of an RTA in France did not have QOCS protection. An appeal on the substantive issue in the case has now concluded without a hearing. The appeal on the QOCS issue will take place on 28 June 2017.

New – Costs: budgets and detailed assessment. The issue in Harrison v University Hospitals Coventry & Warwickshire NHS Trust concerns the effect of CPR r.3.18 once the case reaches detailed assessment. The case has been leapfrogged to the Court of Appeal and will take place on 10/11 May 2017. Carr J refers to Harrison at paragraph 64 of her recent judgment in Merrix referred to below.

New – Defective premises: liability of landlord. Dodd (Widow and executrix of the Estate of Paul James Dodd deceased) v Raeburn Estates Ltd & Ors is an appeal from a summary judgment decision striking out the claimant's claim. The claimant's husband had fallen down a staircase and subsequently died. The issue was whether the freeholder was liable under the Occupiers' Liability Act 1957 and the Defective Premises Act 1972 given the staircase had been devised to a developer. The hearing will take place on 13/14 June 2017.

Local authority liability: swimming pool accident. In RXDX v Northampton Borough Council & Anr a six year old claimant suffered a brain injury after nearly drowning in a public swimming pool. The local authority was held liable for the failure of the lifeguards on duty to adequately supervise the claimant’s use of the pool. The Court of Appeal hearing will take place on 14/15 June 2017. Read more in Lord Justice Jackson’s judgment granting permission to appeal.

Lung cancer: contributory negligence. Permission to appeal to the Court of Appeal has been granted in the case of Blackmore v Department for Communities & Local Government. The 2014 county court decision involved calculating the degree of contributory negligence in a case where the deceased developed lung cancer due to a combination of smoking and exposure to asbestos. The appeal will take place on 14/15 June 2017. Read more in our update on the first instance decision.

Costs: assignment of CFA. The case of  Budana v Leeds Teaching Hospitals NHS Trust on the validity of assigning a CFA was leapfrogged to the Court of Appeal and will be heard on 4/5 July 2017.

New – Defective premises: strict liability. In Lafferty v Newark and Sherwood District Council the claimant was standing in her garden when a hole opened up beneath her and she fell into it sustaining minor leg injuries. The issue is whether s.4(4) of the Defective Premises Act 1972 imposes a form of strict liability. Jay J held that it did not and dismissed the claimant's first appeal. The Court of Appeal will hear the case on 11/12 July 2017.

Costs: proportionality. An appeal from the decision of Senior Costs Judge Master Gordon-Saker about the ‘new’ test on proportionality has been leapfrogged to the Court of Appeal. BNM v MGN Ltd has now been listed for 10/11 October 2017.

High Court

Update - Costs budgeting: detailed assessment. Mrs Justice Carr handed down judgment in Merrix v Heart of England NHS Foundation Trust, on 24 February finding that "where a costs management order has been made, when assessing costs on the standard basis, the costs judge will not depart from the receiving party's last approved or agreed budget unless satisfied that there is good reason to do so." She also suggested that any appeal from this decision could perhaps be listed in May alongside the Harrison case referred to above.

MIB agreements: judicial review. The judicial review by road victims' charity RoadPeace in relation to the MIB agreements was heard in January. Judgment is awaited in R (on the application of RoadPeace) v Secretary of State for Transport & the MIB. 


Update - Discount rate consultations. Last month we were awaiting the Lord Chancellor's decision following her surprise review of the discount rate. In the now famous bombshell of 27 February, Liz Truss set the discount rate at minus 0.75% to take effect from 20 March. At the same time she acknowledged that the framework for setting the rate is in need of reform and that a consultation to be issued before Easter will look at options for reform. Even though all the Lord Chancellor had done was apply the letter of Wells v Wells in the current financial climate, not even claimant representatives were realistically expecting such a low figure. The decision has been widely covered by the insurance, legal and mainstream press who have highlighted the financial impact on the NHS, on insurance companies and on premiums; and also the practical claims handling issues arising from the uncertainty over how long the new rate will remain in force. At the time of writing, we await the consultation which has been promised by 31 March. In the meantime the Scottish Government has now also set the Scottish discount rate at minus 0.75% and this came into force on 28 March. The position in Northern Ireland is less clear given the current uncertainty about whether a new coalition Government can be formed there.

Breaking news 30 March: the MoJ has this morning launched its consultation: The personal injury discount rate: how it should be set in future. The consultation closes on 11 May and the Government is expected to respond within three months of the closing date.

Update - Driverless technology: House of Lords inquirySoon after the DfT consultation on driverless technology closed, the House of Lords Science and Technology Committee launched an inquiry into the future uses of driverless vehicles in the UK. After taking written submissions and oral evidence, the Committee has now (15 March) published its report. The report highlights that Connected and Autonomous Vehicles (CAV) is a fast-moving area of technology and that there is a lot for Government to do. There needs to be central co-ordination of strategy across the various sectors that could benefit from CAV and not just a focus on private road vehicles. There also needs to be further research and sharing of expertise and knowledge. In the meantime, the Government's Vehicle Technology and Aviation Bill resulting from the DFT consultation continues its passage through parliament (see more below).


Motor insurance: implications of ECJ Vnuk ruling for UK legislation. In December the Department for Transport published its consultation Motor Insurance: consideration of the 'Vnuk judgment' to look at “options for amending domestic motor insurance law in light of the European Court of Justice ruling…” The Government is considering two options: one would result in UK law reflecting the decision in Vnuk and broadening the scope of insurance requirements; the other would be based on the (seemingly) preferred suggestion set out earlier this year in the European Commission Roadmap which would involve amending the Motor Insurance Directive, albeit acknowledging that the Commission has not actually finalised any decisions yet on this. The consultation closing date has just been extended from 31 March to 13 April 2017. Read more in our brief summary of the consultation

Fixed recoverable costs for clinical negligence claims. The consultation on fixed recoverable costs in clinical negligence claims was published on 30 January. It seeks views on proposals to introduce a mandatory system of fixed costs for claims valued between £1,000 and £25,000. To ensure that patients maintain access to justice, the proposals also aim to streamline the system and incentivise earlier resolution of claims. The consultation closes on 1 May 2017. Read more in the Department of Health press release and in Simon Denyer's update

The following consultations are awaiting official responses:

Update – Low value whiplash claims & small claims track. Last month we reported on the first part of the Government's response to the consultation on Reforming the soft tissue injury (whiplash) claims process  and the incorporation of its proposed reforms to the whiplash claims process within the new Prisons and Courts Bill. Further details can be found in our review of the proposals and we report on the Bill's passage through parliament below. A second part to the consultation response is awaited and will look at the outstanding proposals considered, including, the Insurance Fraud Taskforce recommendations, credit hire and rehabilitation.

Update - Review of Fixed Recoverable Costs. The terms of reference for Lord Justice Jackson's Review of Fixed Recoverable Costs are to “develop proposals for extending the present civil fixed recoverable costs regime in England and Wales…” and to “consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply”. This month, Jackson LJ gave a progress report in a speech on 7 March. He identified the issues emerging from the written submissions and the seminars to date. These include the message that costs management is working better although there continue to be issues around "incurred costs". Another frequent message is that one size doesn't fit all in terms of the types and level of case suitable for fixed costs: on this Jackson LJ mentioned the possibility of an "intermediate track" to accommodate lower value multi-track cases. The next three seminars will cover lower value business disputes, public law cases, judicial review and structural issues concerning fixed costs. Jackson LJ is due to report by 31 July 2017 following which a Government consultation is expected.

Motor prosecutions: review of driving offences and penalties. Having first been announced in August 2013, the long awaited consultation arrived on 5 December 2016 the day after a press release announcing that “dangerous drivers who kill are set to face life sentences”. The consultation seeks views on road traffic legislation relating to offences of causing death or serious injury. In particular, views are sought in relation to: the distinction between "careless" and "dangerous" driving; a perceived "gap in the law" for causing serious injury by careless driving; maximum penalties for causing death; driving disqualifications. The consultation closed on 1 February 2017 and the next day the MoJ announced that the response has been one of the highest for an MoJ consultation.

Claims Management Regulation: fees cap. In February the MoJ published a consultation on proposals to cap the level of fees that regulated CMCs can charge consumers. It is currently only proposed that the cap should apply to the financial products and services claims sector. However, the consultation did invite views on whether fee controls in the personal injury sector should be considered as well. The consultation closed on 11 April 2016.

Legal services regulation: removing barriers to competition. In July 2016 the MoJ announced a consultation on proposals to reduce barriers to market entry, and regulatory burdens on Alternative Business Structures in legal services. Lord Faulks’ ministerial statement also mentioned the Government’s intention to consult on regulatory independence, in the context of the interim findings of the CMA’s Legal Services Market Study. On that issue, the CMA had identified benefits and risks within the current regulatory framework and whilst it was open to more fundamental change of the regime it acknowledged the complexity of the issues. The current consultation closed on 3 August 2016.

Solvency II: Treasury Select Committee InquiryOn 13 September the Treasury Committee launched an inquiry into the new regime for the regulation of insurance, which was implemented in January 2016. The inquiry is exploring the impact of the directive, and the options now available to the UK following the Brexit decision, in more detail. Over the last few months the Committee has been taking oral evidence.  A panel of insurers participated in a session in January, and on 22 February it was the turn of the PRA. Sam Woods was reported as saying that insurers were "putting their case too strongly" but acknowledging "there are some bugs that need to be ironed out". Also last month, in a speech to the ABI, the Bank of England's David Rule expressed cautious optimism about the operation of the rules one year in.


Update – Whiplash reform: Prisons and Courts Bill. Part 5 of this Bill which was introduced to the House of Commons on 23 February contains the whiplash related provisions revealed in the response to the consultation on Reforming the soft tissue injury (whiplash) claims process. The increase to the Small Claims Track will be brought in by secondary legislation which we understand should be available shortly. The Bill passed its Second Reading on 20 March and a comprehensive analysis of the issues arising from the debate can be found in Simon Denyer's update this month. It is now being considered by the Public Bill Committee. In one of the first meetings, on 28 March, the Committee took evidence from James Dalton of the ABI, Brett Dixon of APIL and Rob Townend of Aviva. Issues discussed included the passing on of savings to customers, the definition of whiplash, fraud, claims management companies, pre-med offers and the impact of the discount rate reduction. You can read the transcript of the meeting here. The Committee is also accepting written evidence until the end of the Committee stage which is expected to be 27 April 2017. Progress of the Bill can be followed here where there is also a Commons Library briefing on the Bill prepared in advance of the second reading. Separately, on 17 March the Justice Select Committee launched a short inquiry into the whiplash provisions of the Bill and also the plans to increase the small claims track. This Committee requires submissions by 31 March 2017 to enable the Committee to report during the Bill's passage through parliament.

Online court: Prisons and Courts Bill. Part 2 of the Bill includes provision for the legal foundations for the introduction of new online procedures and online dispute resolution (ODR) for the civil courts, family courts and tribunals. The clauses enable the creation of a new online court that could deal with low value money claims below £25,000, as was recommended by Lord Justice Briggs’ Civil Courts Structure Review. The clauses create a new online procedure rules committee and will allow new online procedures to apply to existing civil courts, family courts and tribunals. Further details on this part of the Bill can be found in a specific Commons Library briefing: The Prisons and Courts Bill: Court Reform (pdf)

Update – Driverless technology: Vehicle Technology and Aviation Bill. This Bill, which sets out the proposed insurance measures required for automated vehicles following the recent DFT consultation was introduced to the House of Commons and given its First Reading on 22 February. Part 1 of the Bill contains the insurance provisions, the crux of which is that the driver and their autonomous car will be covered under the same policy as the notes to the Bill explain: "This Part extends compulsory motor vehicle insurance to cover the use of automated vehicles in automated mode, so that victims (including the ‘driver’) of an accident caused by a fault in the automated vehicle itself will be covered by compulsory insurance in place on the vehicle. The insurer would be initially liable to pay compensation to the innocent victim, including to the innocent driver who had handed control to the vehicle. The insurer then has the right to recover costs from the liable party under existing common and product law." The Bill has already passed through its Second Reading and the Public Bill Committee and will next be considered at the Report Stage and Third Reading in the Commons. You can follow the Bill's progress here. In the meantime Fleet News reports that the DfT has this month confirmed that it will test its proposed insurance rules on the public sector fleet before looking at the private sector.

New – Deprivation of liberty: Mental Capacity (Amendment) Bill. In 2014 the Law Commission began a review of the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act. The DoLS aim to protect people who lack mental capacity, but who need to be deprived of liberty so they can be given care and treatment in a hospital or care home. If a person’s right to liberty needs to be infringed in other settings, an authorisation must be obtained from the Court of Protection. The DoLS have been criticised for being overly complex and excessively bureaucratic, placing increasing burdens on local authorities. In 2015 the Law Commission held a consultation and in 2016 published an interim statement. On 13 March 2017 the Law Commission published its final report along with a draft Bill. It recommends that the DoLS be repealed with pressing urgency and sets out a replacement scheme called the Liberty Protection Safeguards. In addition the draft Bill makes wider reforms to the Mental Capacity Act which ensure greater safeguards for persons before they are deprived of their liberty. A Government response is now awaited.

Insurance contract law reform: draft Insurable Interest Bill. In April 2016 the Law Commission and the Scottish Law Commission published a draft Bill following their review of 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. The draft Bill is intended to reflect the proposals set out in the issues paper and the Law Commissions invited comments on the draft Bill by 20 May 2016 with a view to publishing a final draft Bill and report in autumn 2016 but there have been no further developments to date.  

Enterprise Act 2016: late payment of insurance claims. The Act which includes provisions giving policyholders a right to damages for late payment of claims received Royal Assent on 4 May 2016. The late payment provisions will come into force on 4 May 2017. Read more in our update from last year

Update – Riot Compensation Act 2016. In March 2016 the Riot Compensation Act 2016 received Royal Assent. The aim of the new Act was to replace various aspects of the Riot (Damages) Act 1886 which were found wanting in the aftermath of the 2011 riots. The Act preserves the general principle of state compensation but introduces a compensation cap of £1 million per claim and expressly excludes the right of recovery in respect of consequential losses. It also provides a modernised definition of “riot”, and introduces reforms to the claims process. This month has seen the publication of two statutory instruments to bring the Act into force: The Riot Compensation Regulations 2017 implement the Act, providing the detail around claim procedures, compensation and reviews and appeals and The Riot Compensation Act 2016 (Commencement) Regulations 2017 provide a commencement date of 6 April 2017.

Also on the horizon...

Update - Insurance Fraud Taskforce. The IFT published its final report in January 2016 and in a written ministerial statement in May 2016 the Government welcomed the report and accepted the seven recommendations addressed to it in relation to low value personal injury claims. Since then the IFT has met to consider progress to date and the further work required. Then in its November consultation on whiplash process reform the Government took the opportunity to obtain views on the implementation of certain of the IFT's recommendations. These included a recommendation to amend the QOCS rules where a claimant discontinues less than 28 days before the start of a trial. As mentioned above, part two of the consultation response is due to cover the question of implementing the recommendations from the IFT. In the meantime the Insurance Post has this week reported (subscription may be required) that six out of ten general insurers have signed up to the Insurance Fraud Register on the IFT's recommendation.

Update - MedCo. Following the MoJ’s announcement last October of the revised Qualifying Criteria for MROs, effective from 8 November 2016, MedCo suspended 134 shell companies for failing to comply with the new Qualifying Criteria. This change, together with the change to the search criteria announced earlier in the year were introduced to tackle the gaming of the MedCo system. Read more about the changes in Nigel Teasdale’s update. This month the Gazette has reported that two law firms are being investigated over prohibited links with medical agencies.

Update - Claims Management Regulation. Carol Brady published the final report following her independent review of claims management regulation in March 2016. The review had been commissioned by the Treasury and the MoJ to examine the perception of widespread misconduct among CMCs and make recommendations to improve the regulatory regime. It was then announced in the budget statement, also in March 2016 that responsibility for regulating CMCs would be transferred from the MoJ to the FCA, although to date there has been limited information on when the primary legislation required to transfer regulation to the FCA will be ready. However in this week's meeting of the Public Bill Committee on the Prisons and Courts Bill (see above) Aviva's Rob Townend said he understood the transfer of regulation had been pushed back to 2019. It is clear though that examination of the role of CMCs and their regulation needs to form an integral part of the Government's plans for process reform.

Update - CMA legal services study. In January 2016 the Competition and Markets Authority launched a market study to “examine long-standing concerns about the affordability of legal services and standards of service.” An interim report was published in July and the final report followed in December. The CMA found that competition in legal services for individual consumers and small businesses is not working well, and made recommendations in order to address the issues that it has identified. The package of measures will be overseen by the Legal Services Board and the CMA will evaluate progress in three years' time. In January 2017 the SRA confirmed to the Westminster Legal Policy Forum that it is preparing rules on publishing price information for consultation in the summer. This month the CMA has announced that a Remedies Programme Implementation Group (RPIG) has been put together to oversee the implementation of the recommendations made by the CMA to the regulators in the final report. The terms of reference set out the purpose of the RPIG, its membership and how the group will operate.

NIHL claims: Government action. In June 2015 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. 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 was aiming to prepare an initial report by November 2015 with a final report by April 2016 but as the year went on hopes of seeing it before the end of the year dwindled. Although there has been no official news recently from the CJC, the issue has been raised as part of Jackson LJ's review of fixed costs.

Mesothelioma claims: LASPO funding provisions. In late 2014 following a Justice Select Committee inquiry, the Government decided not to end the LASPO exemption on recoverability to mesothelioma claims. They said a further review of the likely effects of the funding reforms on mesothelioma claims would form part of the Post Implementation Review of LASPO. A Commons Briefing Note on mesothelioma claims last year speculated this would happen over 2017/2018. On 17 January, Justice Minister Sir Oliver Heald QC attended an All-Party Parliamentary Group meeting on Legal Aid and announced that a post-legislative memorandum on LASPO would be sent to the Justice Select Committee before May ahead of a full post-implementation review of the Act to be conducted by April 2018. Whilst the focus of this meeting was on Legal Aid, we presume that the full review will include a review of the mesothelioma provisions.

Update - Civil Courts Structure Review: LJ Briggs' Final Report. On 27 July 2016, Lord Justice Briggs published his final report following his review of the structure of the civil courts. There was no change from the headline recommendation of the interim report, namely the introduction of an online court capable of handling claims with a value up to £25,000. A detailed summary can be found in the press release accompanying the report and you can read more in Simon Denyer’s analysis. In January the Lord Chief Justice and the Master of the Rolls issued a Joint Statement confirming that the senior judiciary endorses the final report of the Civil Courts Structure Review, and supports the recommendations made by Briggs LJ. And as reported above, Part 2 of the new Prisons and Courts Bill includes provisions to enable the creation of the new online court. It was also interesting to see in a Legal Futures article this week that British Columbia's digital tribunal, thought to be the model for the online court in England and Wales, will begin to resolve small claims disputes worth less than £3,000 from 1 June.

SRA: thematic review of personal injury sector. In February the SRA announced that it was starting a review to better understand the personal injury market and in August it began approaching a number of firms to participate in its survey. In October the SRA published its research. According to the survey, conducted by ICF Consulting, the perception is that the market seems to be generally working well although there are concerns that require further investigation. These include the quality of medical reports and a lack of knowledge within firms which have moved into areas such as clinical negligence and disease. Read more in Simon Denyer’s update. Work is ongoing to determine the prevalence of the issues highlighted and the SRA is visiting Personal Injury firms to understand how they have adapted following LASPO. The SRA expects to report further this year.

Motor Insurers' Bureau: new Untraced Drivers' agreement. After consulting in 2013 and publishing a new Uninsured Drivers' Agreement in 2015, in January 2017 the DfT announced that a new Untraced Drivers’ Agreement had been agreed. It came into effect on 1 March 2017 along with a Supplementary Agreement for the Uninsured Drivers’ Agreement. The MIB press release in January said [the] “MIB paying a claim for the damage to an uninsured driver’s car when it has been caused by another uninsured or a ‘hit and run’ driver seems counter-intuitive. However, from 1 March 2017 that is what MIB will be required to do.” The agreements are available from the Motor Insurers’ Bureau and see also the Consultation homepage. Note that the Secretary of State for Transport, Chris Grayling, has stated that the rules will be repealed following Brexit. In the meantime, the outcome of the long running judicial review brought by RoadPeace in relation to the agreements is awaited.

In the long grass?

Issues where there has been no activity for some time:

QOCS: Civil Justice Council report. In 2014 a new CJC working group was set up to advise on issues arising from the implementation of the Jackson reforms. Part of their remit, was to investigate and report on arguments for and against extending QOCS to other categories of case characterised by an asymmetric relationship between the parties such as actions against the police and solicitors’ professional negligence in injury claims. The report (pdf) was published on 30 June and concluded there is a strong case for extending the principle to police claims. For solicitors’ negligence claims, whilst there may be a case in principle for extending QOCS here, there does not appear to be a similar push for its application. In both cases, they say that any decision to extend QOCS would be a matter of policy for the Ministry of Justice.

Damages Based Agreements: Civil Justice Council (CJC). The Government's response to the CJC review of DBAs is still awaited. In September 2015 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. 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". Read more in the CJC media release


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.