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Looking ahead

September 2018

September has been another relatively quiet month for developments in the insurance claims handling arena, as parliament rose for the conference season and Brexit continues to dominate the agenda. This may explain the perhaps surprisingly swift passage of the Civil Liability Bill through its Second Reading and the Committee Stage in the Commons, and we now await the final stages of its passage to see the areas where opposition remains.

So far, the discount rate proposals have proved less controversial in the debates; so in the meantime, it is worth also keeping an eye on the proposals for the method of setting the discount rate in Scotland, where this month GAD analysis has been published along with a comprehensive briefing note. You can read more on this in September's Scotland Focus.

The FCA continues to be busy with preparations for taking over claims management regulation next year, launching another consultation, this time on proposals for applying their Senior Managers and Certification Regime to claims management companies.  

As we await further news on the European Commission's proposal to amend the Motor Insurance Directive following the Vnuk decision, there have been two judgments this month concerning the use of vehicles on private land.

We look at these developments below, along with our usual round up of forthcoming cases, new legislation (including this month, regulations relating to the Riot Compensation Act 2016 and the Third Parties (Rights against Insurers) Act 2010), and other issues on the horizon.

Forthcoming cases

Supreme Court

Clinical negligence: receptionist duty of care. In Darnley v Croydon Health Services NHS Trust the issue is whether a non-clinically trained A&E receptionist owed any tortious duty to provide accurate information to the claimant about waiting times. The hearing took place on 7 June and judgment is awaited.

Local authority: protection from harassment. The Court of Appeal in CN v Poole Borough Council held that a local authority owed no duty of care in the exercise of its social services child protection functions, to protect two children from harassment by a neighbouring family. The Supreme Court heard the appeal on 16/17 July 2018. Read more on the Court of Appeal decision in our update from December.

Supreme Court cases awaiting developments. This month, the Supreme Court has published listing details for the Michaelmas Term (pdf) which include the three cases on which we have been awaiting further information:

Update – Professional negligence: solicitors. The appeal in Perry v Raleys Solicitors will take place on 27 November. In this professional negligence claim concerning the alleged under-settlement of a vibration white finger claim the issues are: (1) where a solicitor negligently fails to advise a client of a potential claim against a third party, and where that client then brings a claim against the solicitor, seeking damages for the lost opportunity to pursue the former claim: must the client prove, on the balance of probabilities, that the former claim would have been an honest claim? and, (2) in which circumstances should an appellate court interfere with a trial judge’s findings of fact? Read more in this Crown Office Chambers update.

Update – Motor insurance: unnamed defendant. In Cameron v Hussain & LV= the issue is whether a claimant is entitled to bring a claim for damages against an unnamed defendant, if the claimant has been the victim of an unidentified hit-and-run driver, and the car the unidentified driver was driving is covered by an insurance policy, albeit one in the name of someone untraceable. We now have confirmation the appeal will be heard on 28 November.

Update - Motor insurance: "use" of vehicle. The issue in R&S Pilling T/A Phoenix Engineering v UK Insurance Limited is whether on its true construction, a policy of motor insurance extends to liability for damage to the property of third parties because of fire caused by repair work to the car when it is immobilised. We now have confirmation the appeal will be heard on 13 December.

Court of Appeal

Update – Legal professional privilege: internal investigations. ENRC are appealing against a first instance decision in which it was held that LPP did not apply to certain documents created during internal investigations undertaken by solicitors and forensic accountants. The appeal in The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited took place at the beginning of July. In a judgment handed down on 5 September the Court of Appeal overturned the High Court decision, holding that the documents are protected by litigation privilege. We wait to hear whether the SFO will seek to appeal the decision.

Vicarious liability: connection with employment. At first instance in Bellman v Northampton Recruitment Ltd it was held that an employer was not vicariously liable for an assault committed by its director after a work Christmas party. 12 KBW outline the grounds on which permission to appeal has been granted and you can read more on the first instance decision in our update from last year. The appeal was heard last month and judgment is awaited.

Update – Professional negligence: solicitors. The case of Lyons v Fox Williams LLP concerns the failure of a solicitor to advise the claimant about his rights under his employer's insurance policies following a road traffic accident and the extent of the solicitor's retainer. The appeal was originally due to take place in July but will now be heard on 3 October.

New – Construction: pay less notices - “smash and grab” adjudications. An appeal in Grove Developments Ltd v S&T (UK) Ltd is due to be heard on 9 or 10 October. The first instance decision of the TCC in Grove held that an employer could adjudicate on the “true value” of a payment application, even where invalid payment notices have been issued.  The decision marked a departure from previous case law where a paying party’s failure to issue a valid payment notice enabled a contractor to claim the full sum under its payment application. Read more in our update from earlier this year.

New – Personal injury: expert evidence. At first instance in Wright v Firstgroup Plc (now First Bristol Ltd), Foskett J allowed the claimant's application to adjourn a trial and instruct a fresh accident reconstruction expert, after the claimant's expert had changed his opinion following the joint meeting of experts, and when there was a lack of clarity about the expert's current view. The appeal will be heard on 17 or 18 October.

New - Solicitors’ professional negligence: Part 36 costs. A costs appeal in Dreamvar (UK) Ltd v Mishcon de Reya & Anor is due to be heard on 23 or 24 October. Dreamvar are appealing the costs order made by Mr David Railton QC at first instance. In the main action, Dreamvar succeeded on a claim for breach of trust but failed to prove allegations of negligence against Mishcon de Reya. Although Dreamvar had beaten a Part 36 offer at trial, the judge at first instance exercised his discretion to deprive it of its costs, bar an award of £75,000. DWF’s Michael Robin is representing Mishcon de Reya.

New - Limitation: contribution claim – mesothelioma. The case of RSA Insurance plc v Assicurazoni Generali Spa concerns the recovery of payments between insurers in a mesothelioma claim. HHJ Rawlings held that the limitation period was two years from the date of settlement, as in a damages contribution claim, as opposed to six years for a debt claim. The appeal is due to take place on 6 or 7 February 2019.

Costs: success fees in low-value PI claims. Litigation Futures reported last month that the Court of Appeal is to consider the legality of what has become the industry model for handling low-value personal injury claims, with firms charging clients a 100% success fee as standard. The court has given permission for a second appeal in Herbert v HH Law which is now due to be heard on 19 or 20 March 2019.

Jersey Royal Court

Abuse claim: discount rate. News is awaited following a trial which started in June and in which two victims of child abuse are claiming £238 million from the Minister for Health & Social Services in Jersey. The claims involve consideration of the law on discount rates, with the defendants seeking to argue that the principles in Wells v Wells and Helmot v Simon should no longer be followed. Read more in the following updates from Crown Office Chambers X Children v Minister for Health & Social Services and X Children v Minister for Health & Social Services #2

Consultations

The following consultations are currently open:

New – Claims management companies: Senior Managers and Certification Regime. The FCA have this month launched a further consultation in preparation for them taking over the regulation of CMCs. All firms regulated by the FCA and authorised under the Financial Services and Markets Act 2000, along with individuals performing regulated activities, need to comply with the FCA's rules on professionalism, conduct and governance, known as the Senior Managers and Certification Regime (SM&CR). This consultation sets out the draft rules and guidance for CMCs relating to the SM&CR, and is open until 6 December. Read more in this helpful summary from Legal Futures.

Claims management companies: recovering the cost of regulation. On 20 August, the FCA opened a consultation on proposals for recovering the costs of regulating claims management companies when it takes over their regulation next year. The FCA estimates that the cost of setting up and delivering the claims management regulatory regime will cost £16.8m which will have to be recovered from CMCs. The consultation is open until 22 October. Read more in the Gazette.

Update - Solicitors Disciplinary Proceedings: standard of proof. In July the Solicitors Disciplinary Tribunal launched a consultation on the making of procedural rules in relation to first instance applications to the Tribunal. The current standard of proof used in disciplinary proceedings before the Tribunal is the criminal standard. The Tribunal is inviting views on whether instead it should apply the civil standard in line with other professional regulators. Whilst the move is clearly being considered for a number of reasons, it could be seen as complimenting the Insurance Fraud Taskforce's recommendation that the SRA toughen its stance on dishonest solicitors. The consultation runs until 8 October and this month the SRA has published its response to the consultation. Highlights of the response include, agreement with the proposal to adopt the civil standard of proof and also a request for a lay majority on any Tribunal panel hearing a case. Read more in the Gazette.

The following consultations await official responses:

If any client wishes to request any DWF consultation responses referred to below they can do so by emailing alex.fusco@dwf.law

Update - Motor insurance: implications of ECJ Vnuk ruling for UK legislation. In December 2016 the Department for Transport held a 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…" Although the government has never formally responded, we know that its preferred option was for the Motor Insurance Directive to be amended in a way to avoid having to broaden the scope of insurance requirements to reflect the decision in Vnuk. The European Commission had also requested feedback on the issue in two consultations, having seemingly indicated in a 'Roadmap' published in June 2016, a preference to amend the scope of the Directive so that it only related to accidents caused by motor vehicles "in the context of traffic". It came as a surprise therefore when at the end of May the Commission presented its proposals to amend the Directive but to reflect the position in Vnuk so that "[t]he 'use of a vehicle' means any use of the vehicle, intended normally to serve as a means of transport, that is consistent with the normal function of that vehicle, irrespective of the vehicle's characteristics and irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion." The Commission's press release provides a short summary of the proposal, and additional documents can be found here. You can read more on the proposal in our June update. Feedback was requested by 24 July 2018 and DWF responded. The proposal is now proceeding through the European Parliament during which time lobbying will continue.

In the meantime, this month there have been two relevant court judgments. On 4 September, the CJEU in Juliana, agreed with the AG that an immobilised vehicle parked on private land is subject to the compulsory motor insurance obligation. And on 14 September, in the case of Lewis v Tindale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), Soole J determined that the MIB is an emanation of the state so that the MID has direct effect. Read more in Gordon Exall's Civil Litigation Brief which also links to a copy of the judgment. And at the beginning of the week, the Department for Transport published a Brexit "no deal" planning paper on vehicle insurance warning of a potential return to a 'green card' system, although in principle a plan has been agreed to keep the UK in the EU's car insurance zone - but this still has to be approved by the Commission.

Reforming the soft tissue injury (whiplash) claims process - Part 2. In February 2017 the government published the first part of its response to the Reforming the soft tissue injury (whiplash) claims process consultation, to which DWF responded. Having initially incorporated its proposed whiplash reforms within the Prisons and Courts Bill, after the dissolution of parliament the whiplash provisions were reintroduced within this year's Civil Liability Bill which is currently progressing through parliament. In the meantime a second part to the consultation response is still awaited and is due to look at the outstanding proposals including, the Insurance Fraud Taskforce recommendations, credit hire and rehabilitation. In July, Part 2 of the consultation response received a mention in the government's response to the Justice Committee's small claims track inquiry with the government confirming that it "is currently working closely with stakeholders including from the insurance industry to take forward the IFT’s recommendations. Detail will be included in Part Two of the response to the whiplash consultation, which will be published shortly."

Review of Fixed Recoverable Costs. Jackson LJ published his Review of Fixed Recoverable Costs, to which DWF contributed, on 31 July. His proposals are to extend fixed costs in claims worth up to £100,000 along with the remaining fast track cases not yet subject to FRCs. The report is being considered by the senior judiciary and the MoJ, and a consultation will hopefully be launched before too long. Throughout the year there have been a number of comments from ministers to the effect that the government is considering the report and will announce the next steps in due course. The latest comment in almost identical terms to previous ones came from Justice Minister Lucy Frazer at the Civil Justice Council LASPO seminar on 29 June.

Review of low value personal injury claims including package holiday claims. In last October's call for evidence on measures to address holiday sickness claims, the MoJ also invited views on low value claims more generally and asked the Civil Justice Council to consider steps that might be taken to prevent unmeritorious claims and to resolve meritorious ones more quickly and with reduced costs. The outcome of the work done on package holiday claims was the introduction of the new Pre-action protocol for resolution of package travel claims along with fixed costs which came into force in May. In July, the government published a summary of the consultation responses and details of the way forward confirming for the first time that fixed costs would not be extended beyond gastric illness claims. And as we reported in June, attention has now turned to the review of low value claims more generally. A cross industry working party met for the first time on 22 May to identify areas of focus which will include CMCs, fraudulent behaviour, processes, MedCo and expert evidence generally, ADR, the portal, sanctions and technology. The group was due to report to the CJC in the summer and we await further developments.

Credit hire: model directions. Last June, the Civil Procedure Rules Committee issued a consultation on the "model order for directions to be used in credit hire cases". Acknowledging that the whole area of credit hire "remains a highly contentious area of litigation" the CPRC identified what they see as relatively simple steps that can be taken to narrow the issues and present the judge with the necessary evidence to make a determination. The proposed directions concern witness evidence and disclosure on impecuniosity and the agreement of hire rates. Stakeholders were urged to confer to try to achieve a consensus or risk a solution being imposed. The consultation closed on 1 August 2017 and DWF responded.

Default County Court Judgments. At the end of December the MoJ launched a consultation looking at the processes for money claims issued in the County Court. They have particular interest in views on limiting the circumstances in which an individual can have judgment entered in default against them without their knowledge. DWF submitted a response to highlight the issue of judgment being entered against policyholders in insurance claims when it is an insurer who will ultimately pay the claim – the MoJ had not identified this scenario in its consultation. The consultation closed on 21 February.

McKenzie Friends. In February 2016 a Judiciary Consultation Reforming the courts’ approach to McKenzie Friends was launched following a Working Group review looking into the increasing numbers of fee charging McKenzie Friends. The consultation invited views on possible reform including the revision of Practice Guidance, or codification of the practice and procedure relating to McKenzie Friends. As part of that, the consultation asked whether there should be a ban on fee charging McKenzie Friends. DWF responded. In September 2017 the Judicial Executive Board announced that a large number of responses were received and that a further working group would review the proposals in light of the responses. In July, the issue received a mention in the government's response to the Justice Committee's small claims track report. The Committee had expressed concern regarding paid McKenzie friends and recommended that "the senior judiciary seek to conclude its examination of this issue as soon as possible." In response the government has confirmed that it "will work with the judiciary to make sure that their concerns are addressed."

Legal services: insurance and compensation. In March the SRA launched a consultation on changes to the legal insurance and compensation rules with proposals including limits to the compensation fund and reducing minimum PII cover. The SRA says these changes will give firms more flexibility to choose the right level of insurance to suit their business and clients, while making sure there are still appropriate protections for users of legal services. The proposals include reducing the maximum single claim limit to £500,000 (£1 million for conveyancing); keeping the need for a six year run off period of insurance after a firm closes but capping the overall level of cover at £3m for firms that have done conveyancing work and £1.5m for other firms; and removing the need for compulsory insurance to include cover for large commercial clients. The consultation closed on 15 June following which some responses started to emerge, including criticism from both the Law Society and the ABI. July saw two reports on the issue from the Gazette: one on the potential for volatility to result and one from the SRA's Crispin Passmore explaining the reasons behind the proposed changes.

FCA: regulation of claims management companies. In anticipation of the transfer of regulation of CMCs to the FCA on 1 April 2019, the FCA published a consultation setting out the draft rules and guidance they propose to make in relation to claims management activities, and the standards they think CMCs regulated by the FCA should have to meet. They have identified a number of harms in the sector which the proposals are aimed at addressing. Read more in the FCA press release and Legal Futures. Comments were requested by 3 August and DWF responded. A policy statement is due in Q4 2018.

Nuisance calls and messages: action against directors. On 30 May the government published a consultation proposing measures to hold company directors personally responsible for breaking the law in relation to unsolicited calls. The measures would provide the Information Commissioner’s Office (ICO) with the powers it needs to hold company directors directly responsible with further fines of up to £500,000. The consultation closed on 21 August. Read more in the press release from the Department for Digital, Culture, Media & Sport.

Update - LASPO Part 2: post-implementation review. In June, the MoJ published an initial assessment  of the Part 2 LASPO reforms for its post-implementation review. The Civil Justice Council then held a seminar, where a number of speakers including Sir Rupert Jackson, Prof Paul Fenn, Prof Rachael Mulheron and claimant and defendant solicitors spoke about the key impacts of Part 2 of LASPO. The discussions covered a range of familiar issues, including: CFAs, costs budgeting, QOCS, the referral fee ban, and Part 36 consequences. High on the agenda (and now out of Looking Ahead's long grass) was the issue of DBAs which are not being effectively utilised; in part due to technical deficiencies in the regulations and in part due to the government's reluctance to permit hybrid DBAs. The mesothelioma exemption on recoverability of additional liabilities also received a mention (albeit the PIR is not directly considering mesothelioma claims or the exemption), as did the potential extension of the QOCS regime to police and/or professional negligence claims (bringing this issue out of the long grass as well). The CJC published a summary of the day's discussions and different aspects of the day were also covered by the Gazette, Litigation Futures and Legal Futures. The MoJ invited views and evidence by 24 August and DWF responded. Since then, the CJC has published its response and the Gazette reports on the response from FOIL. This month APIL (pdf) and the Law Society have published their responses, both helpfully summarised by Litigation Futures.

Legislation

Update - Whiplash reform: Civil Liability Bill. The Civil Liability Bill which was introduced in the House of Lords on 20 March contains the government's whiplash proposals to ban pre-med offers and introduce a new fixed tariff of compensation for whiplash injuries with a duration of up to 2 years. It also contains the provisions for changing the method of setting the discount rate. In June the Bill concluded its passage through the House of Lords. There was broad consensus on the discount rate and the need to implement those provisions as soon as possible, but fundamental issues remained in dispute on the whiplash provisions. We looked at the outstanding issues in our updates on the Report stage and Third Reading. The Bill had its First Reading in the Commons on 28 June, and last month we were looking ahead to the Second Reading on 4 September. The Bill was expected to have a bumpy ride but it passed both the Second Reading and then the Committee Stage in spite of opposition. You can read more in Simon Denyer's reviews of the Second Reading and Committee Stage. Labour has confirmed that it will continue to oppose the Bill during the next stages, and a date for the Report Stage is awaited. You can follow the Bill's progress on the Bill's webpage and you will also find the various submissions to the Public Bill Committee towards the end of the Bill documents page.

Online court: Courts Bill. The Queen's Speech stated that this Bill will "reform the courts system in England and Wales to ensure it is more efficient and accessible, and in doing so utilise more modern technology".  We had presumed that this Bill would pick up from Part 2 of the Prisons and Courts Bill which included provision for the legal foundations for the introduction of new online procedures and online dispute resolution (ODR), and for the creation of a new online court that could deal with low value money claims below £25,000, as recommended by Lord Justice Briggs’ Civil Courts Structure Review. In March, the Lord Chancellor David Gauke said, "I hope to be able to bring forward further news on the courts Bill in the near future". In May, we reported that the newly introduced Courts and Tribunals (Judiciary and Functions of Staff) Bill which will allow judges to delegate tasks to court staff was not the Bill we expected. There also appeared to be some doubt about whether there would be legislation to implement LJ Briggs' recommendations, with Coulson J and Birss J indicating at the CPRC open meeting on 11 May that there is no over-arching online court and no indication that legislation will be put in place. However, in late May, the chief executive of HMCTS was reported to have said there will be further legislation 'to underpin the online court' as soon as parliamentary time allows. In the meantime, the new Bill had its Committee Stage on 10 July and the Report Stage will take place on 16 October. In June, we reported on criticism of the Bill at Second Reading. In July, the Equality and Human Rights Committee set out its concerns in a Lords briefing before the Committee Stage.

New - Riot Compensation (Amendment) Regulations 2018. Regulations have this month been published with the purpose of providing corrections to the 2017 Regulations to ensure clarity of entitlement to compensation and the procedure. Further details can be found in the explanatory note and memorandum and the Regulations come into force on 1 October.

New - Third Parties (Rights against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018. At the end of June draft regulations were published aimed at addressing one of insurers' main concerns about the 2010 Act, surrounding the ability of an insurer to seek a contribution from other tortfeasors. DWF's Derek Adamson explained the issue in this New Law Journal article from earlier this year. The regulations "will give an insurer of a company that has been dissolved for more than six years a right to restore the company to the register of companies in order to take legal proceedings to recover contributions from other persons who are also liable for a personal injury in respect of which the insurer has paid out damages." The draft regulations are subject to the affirmative procedure which means they need to be approved by Parliament. Having already been considered by two committees they are due to be considered by the Delegated Legislation Committee on 11 October.

We have also been following progress on two Law Commission draft Bills:

Update - 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. In March 2017 the Law Commission published its final report along with a draft Bill. It recommended that the DoLS be repealed and set out a replacement scheme called the Liberty Protection Safeguards. In February the Joint Select Committee on Human Rights launched an inquiry into the proposed reform of the DoLS and whether it is striking the right balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous. In March, the government published its final response in which it set out its provisional views on the individual proposals. On 29 June the Human Rights Committee published its report recommending that legislation implementing the Law Commission's Liberty Protection Safeguards is brought forward as soon as possible. It also recommended that parliament should provide a statutory definition of what constitutes a deprivation of liberty. Then on 3 July, the government published the Mental Capacity (Amendment) Bill which has already had its Second Reading, and its first sitting of the Committee Stage on 5 September. A second day is scheduled for 15 October. You can follow the Bill's progress here, and there is a helpful round-up of recent developments on the parliament website, including a link to a Lords Library Briefing Note which covers the background to the Bill, the differences between the Bill and the Commission's recommendations, and the Committee report.

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 was 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. The project was then put on hold due to other priorities within the team but on 20 June the Law Commission published their updated draft legislation. Last month the Law Commission has extended the deadline for comments to 31 October. Read more in the Law Commission press release.

Also on the horizon...

Update - Small claims track limit increase. Last December the Justice Committee launched a new inquiry into the government's proposals to raise the small claims track limit for personal injury claims. In May the Committee published its report highlighting significant access to justice concerns. Simon Denyer analysed the findings in this update.  In July the government responded to the Justice Committee report and in doing so announced a delay in the implementation of the whiplash and small claims proposals until April 2020. Importantly though, the government does not accept the Committee's recommendation to limit any increase in the small claims track limit to £1,500. Read more in Nigel Teasdale's update. In response, the Chair of the Committee wrote to the Lord Chancellor seeking further information on several points, including an explanation on how "the proposed increase to £5,000 for RTA PI claims is proportionate". This month the Committee published the Lord Chancellor's response (pdf) (and summarised in Legal Futures) explaining the government's belief that setting the limit at a lower level than £5,000 "will fuel claims displacement". The issue is also still intertwined with the Civil Liability Bill – which we discuss further above - albeit not forming part of it.  Last month the House of Commons Library published a helpful briefing note on small claims for personal injuries including whiplash.

Insurance Fraud. We have for some time been waiting for the government's response to Part 2 of its whiplash consultation which sought views on certain recommendations made by the Insurance Fraud Taskforce in its final report in January 2016. The latest news on that came in the government's response in July to the Justice Committee's small claims track inquiry, confirming that it "is currently working closely with stakeholders including from the insurance industry to take forward the IFT’s recommendations. Detail will be included in Part Two of the response to the whiplash consultation, which will be published shortly." Also in July, the Solicitors' Disciplinary Tribunal launched a consultation on whether to lower the standard of proof in disciplinary proceedings to the civil standard, a move which could be seen as a response to the IFT's recommendation to toughen action against dishonest solicitors. Last month the ABI published details of its most comprehensive analysis yet into insurance fraud with the headline One scam every minute – ABI reveals the true extent of insurance fraud in the UK, and yesterday, held its annual fraud conference focusing on tackling fraud through collaboration and innovation.

Update - MedCo. In October 2016 the MoJ published revised Qualifying Criteria for MROs, effective from 8 November 2016. MedCo immediately suspended 134 shell companies for failing to comply with the new Qualifying Criteria and over the course of the next 6 months or so, MedCo reported on a range of enforcement action. In August 2017 MedCo warned against "inappropriate behaviour" during the audit process and in October MedCo published an FAQ document (pdf) to address common issues arising out of the Guidance supporting the revised Qualifying Criteria. This month MedCo provides an update on its audit programme, details of which can be found on the MedCo homepage, and Litigation Futures reports on news from its PI Futures conference last week that "the number of MROs on the MedCo system has shrunk by a third in only eight months."  

Update - Claims Management Regulation. Carol Brady published a 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 that responsibility for regulating CMCs would be transferred from the MoJ to the FCA. This is being taken forward in the Financial Guidance and Claims Act which recently received Royal Assent and HM Treasury has recently consulted on the accompanying draft regulations. A consultation which closed last month sought views on proposals to give the ICO powers to impose fines of up to £500,000 on individual directors of companies which breach the rules on nuisance calling. In July, the Claims Management Regulator published its 2017/18 annual report from which Legal Futures highlighted a move from holiday sickness claims into housing disrepair cases. Last month saw the deadline for the FCA's consultation on proposals for regulating CMCs and the start of new consultation on proposals for recovering the costs of regulation. This month has brought another FCA consultation, on proposals for applying their Senior Managers and Certification Regime (SM&CR) to claims management companies (CMCs); and the ban on cold calling in the absence of consent has now come into force.

Civil procedure: disclosure. Last November the Judiciary set out detailed proposals for a mandatory disclosure pilot scheme to run for two years in the Business and Property Courts. A Disclosure Working Group had been set up in May 2016 to look into widespread concerns about the excessive cost, scale and complexity of disclosure with a view to achieving a wholesale cultural change in the disclosure process. "The unanimous view of the Working Group is that a wholesale cultural change is required and that this can only be achieved by the widespread promulgation of a completely new rule and guidelines on disclosure which will apply for the majority of cases proceeding in the Business and Property Courts." After a slight delay in the rules being approved, on 31 July, it was announced that the scheme had been approved and the pilot will commence on 1 January 2019. Read more on the Judiciary website and in the Gazette.

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 response to those concerns the MoJ asked the Civil Justice Council to consider the issue and make recommendations. The CJC published its long awaited report in September 2017, although Jackson LJ had spoilt the surprise by announcing and endorsing the agreed fixed recoverable costs matrix as part of his own review (see Simon Denyer's review of the proposals). The new news then was the proposals for reform of the claims handling process. You can read more about the proposals in our comprehensive update. We also took the opportunity to comment on the handling of NIHL claims in the call for evidence in relation to holiday sickness claims and low value personal injury claims.

Civil Courts Structure Review: LJ Briggs' Final Report. In July 2016, Lord Justice Briggs published his final report following his review of the structure of the civil courts. The headline recommendation was 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 2017 the Lord Chief Justice and the Master of the Rolls issued a Joint Statement endorsing the report and supporting the recommendations. In the meantime a pilot began in September to trial a procedure that will allow legal representatives to file claims online at the CCMC. In April the pilot moved on to the 'Public Beta' phase. The Courts Bill proposed in the Queen's Speech was expected to reintroduce the provisions enabling the creation of the new online court but the Bill is still awaited. In May the CPRC cast some doubt on whether there will be legislation with Coulson LJ and Birss J indicating that there is no over-arching online court and no indication that legislation will be put in place. However in June, the CEO of HMCTS was reported as saying there will be further legislation ‘to underpin the online court’ as soon as parliamentary time allows. And in July, Joshua Rozenberg published his book (which is available as a free download) on the online court planned for England and Wales.

Update - SRA activity. In July, we reported that personal injury claims feature in the SRA's risk outlook for 2018/19 as part of a new priority risk: managing claims. In the accompanying press release Paul Philip, SRA Chief Executive says, "... For the first time, we are highlighting how claims are managed as a key risk. This follows concerns over issues such as firms failing to properly check on the validity of personal injury claims…" We have also been following the SRA's work on transparency, including proposals to require law firms to publish pricing information and complaints data. Last month, the Legal Services Board (LSB) has approved the new transparency rules, although having initially been part of the proposals, personal injury claims no longer appear to be covered by the new rules. The SRA is also sticking with plans to allow solicitors to practise from unregulated firms and enable freelance solicitors to do more, although this month it has come under further fire for those plans. It also issued a new consultation last month on proposed rule changes on the reporting of potential misconduct and updated its warning notice in relation to holiday sickness claims (read more in the Gazette). This month the SRA has responded to the SDT consultation on the making of procedural rules in relation to applications to the tribunal. 

In the long grass?

Issues where there has been no activity for some time:

We have kicked QOCS and DBAs out of the long grass for now as it appears they may both be looked at as part of the MoJ's post-implementation review of Part 2 of LASPO discussed further above.

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 but to date there has been no response. In December 2017, while responding to the CMA Legal Services Market Study, the government confirmed it would not be going ahead with a consultation on regulatory independence as it believes there is scope to make more progress within the existing framework.

Contact

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

You can find all previous editions of Looking Ahead here

 

By Alex Fusco

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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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