In a year already full of surprises, April brought another one with Theresa May's announcement of a snap general election on 8 June. Parliament will be dissolved on 3 May although it appears that in reality there will be no parliamentary business after 27 April. Public bills cannot be carried over after the dissolution of parliament, and we now know that neither the Prisons and Courts Bill, nor the Vehicle Technology and Aviation Bill will proceed. The election will have an impact on ongoing consultations and on the work of the various select committees which cease to exist once parliament is dissolved. It will also inevitably delay the post-implementation review of LASPO. The date for the first meeting of the new parliament has not yet been announced but in 2015 it was the second Monday after the election.
Even before the election announcement there were reports that Liz Truss is likely to be removed as Lord Chancellor, and, going further, that the role may be returned to a senior lawyer, potentially resulting in the demise of the MoJ as a department.
This month in addition to our usual update on appeals and judgments to watch out for we provide a round-up of the stage reached in those areas and developments affected by the dissolution of parliament.
Update - Professional negligence: accountants. The issue in Swynson Ltd v Lowick Rose was 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. In a judgment handed down on 11 April, the Supreme Court allowed the appeal of Lowick Rose LLP, overturning the Court of Appeal decision. Read more in our update this month.
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.
Update – Accidents abroad: jurisdiction. The hearing of the appeal in Four Seasons Holidays Inc v Brownlie will start on 9 May 2017. The issue is whether the Court of Appeal erred in holding that the tort jurisdictional gateway test under the CPR, which requires that "damage" be sustained within the jurisdiction, is not satisfied by indirect or consequential damage.
Supreme Court cases awaiting developments. We await further official details for a number of cases where permission to appeal has been granted:
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.
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.
Update - 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. In a judgment handed down on 7 April the Court of Appeal upheld the first instance decision.
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 QOCS issue will take place on 28 June 2017.
Update - 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. In the recent case of Merrix v Heart of England NHS Foundation Trust Carr J suggested any appeal of that decision could be heard alongside Harrison but we understand that it is not going to be appealed.
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.
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.
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.
General Election: Following the announcement of the General Election, the Cabinet Office has published Election guidance for civil servants which explains and advises on the implications of the election on the work of the various Government departments and civil servants. The guidance contains sections on consultations during an election period and also the work of select committees. In relation to consultations, the guidance is that ongoing consultations should continue as normal and that departments may continue to receive and analyse responses with a view to putting proposals to the incoming government. In relation to Select Committees, work on inquiries ceases at the end of Parliament. Departments should continue to work, on a contingency basis, on any outstanding evidence requested by the outgoing committee and on any outstanding government responses to committee reports. However it will be for any newly appointed committee to approve the contents of any response, to decide whether to continue with an inquiry and whether to publish government responses to its predecessor reports.
With that in mind we round up below the present position on the consultations we have been following:
Update - Discount rate consultations. Following the now famous bombshell decision of 27 February to set the discount rate at minus 0.75% taking effect from 20 March, the MoJ launched its promised consultation on 30 March. The consultation The personal injury discount rate: how it should be set in future is due to close on 11 May and the MoJ has confirmed their working assumption is that this remains unchanged.
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 and this week the Medical Protection Society has urged the Government to return to its original plan of including claims worth up to £250,000 in its proposals.
The following consultations are awaiting official responses:
Reforming the soft tissue injury (whiplash) claims process - Part 2. In February the Government published the first part of its response to the Reforming the soft tissue injury (whiplash) claims process consultation. It then incorporated its proposed reforms to the whiplash claims process within the new Prison and Courts Bill. Further details can be found in our review of the proposals although as we report below, this Bill will now no longer proceed. A second part to the consultation response is awaited and is due to 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”. Jackson LJ gave a progress report in a speech on 7 March. The emerging issues included 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 roadshow of seminars is now complete and Jackson LJ is due to report by 31 July 2017. Dominic Regan has reported that the election should have no effect on the timing of the report. A Government consultation is expected following the report
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 sought views on road traffic legislation relating to offences of causing death or serious injury. In particular, views were 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; and 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. A response is awaited.
Driverless technology: House of Lords inquiry. Soon after the Department for Transport 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. The Committee published its report in March highlighting that this 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 Connected and Autonomous Vehicles (CAV) and not just a focus on private road vehicles. There also needs to be further research and sharing of expertise and knowledge. A Government response is awaited.
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 closed on 13 April 2017 and the Government's response is awaited.
Claims Management Regulation: fees cap. In February 2016 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 consider a further consultation on regulatory independence. The current consultation closed on 3 August 2016.
Solvency II: Treasury Select Committee Inquiry. On 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 was exploring the impact of the directive, and the options available to the UK following the Brexit decision, in more detail. Over the last few months the Committee had been taking oral evidence but the Inquiry homepage now confirms that all inquiries will close on 3 May and it seems unlikely that a report will be published before then.
General Election: The Prisons and Courts Bill and the Vehicle Technology and Aviation Bill will no longer proceed and will need to be reintroduced in the next parliament.
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 as at last month was expected to be available shortly but will now have to wait. The Bill was being considered by the Public Bill Committee when the election announcement brought an end to its progress.
We also reported last month that 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. The Committee has confirmed that with the imminent dissolution of parliament, it is no longer accepting written evidence and it will be for the new Justice Committee to decide whether to continue the work on this topic. In the meantime, all of the evidence received to date will be published on the inquiry page. Update 28 April: the Committee has today published a report explaining the impact of the dissolution of parliament on its work and setting out the stage reached in each of its current inquiries. Read the section on the Prisons and Courts Bill here.
Online court: Prisons and Courts Bill. Part 2 of the Bill (no longer proceeding) included 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.
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 on 22 February. Part 1 of the Bill contained the insurance provisions, the crux of which is that the driver and their autonomous car will be covered under the same policy. The Bill had already passed through its Second Reading and the Public Bill Committee and was due to be considered at the Report Stage and Third Reading in the Commons. Again, this Bill will have to be reintroduced in the next parliament.
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.
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. Last month saw 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 provided a commencement date of 6 April 2017.
Also on the horizon...
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 the November 2016 whiplash consultation 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.
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. Following the election announcement MedCo has posted an update confirming that it will work closely with the MoJ on proposed legislation at the appropriate time and in the meantime will continue to implement existing policy.
Update - Claims Management Regulation. Carol Brady published the final report following her independent review of claims management regulation in March 2016. The Treasury and the MoJ had commissioned the review to examine the perception of widespread misconduct among CMCs and to 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. Last month we reported that the transfer of regulation was understood to have been pushed back to 2019. We are now aware that the draft legislation required to transfer regulation to the FCA was being prepared before the General Election announcement, so will now have to wait for the new parliament to be introduced.
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 were 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. Inevitably this review will have to await the new parliamentary session.
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 included provisions to enable the creation of the new online court but again this will now have to wait to be reintroduced.
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.
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.
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. Last month the CMA 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. Read more about the RPIG and a possible transparency pilot in Legal Futures.
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.
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.