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Looking ahead

November 2019

Now that we are in pre-election purdah, November has been relatively quiet. In the run-up to the dissolution of Parliament on 6 November, the select committees of the House of Commons wrapped up a number of enquiries by producing reports, notably the Justice Committee and Public Accounts Committee reporting (critically) on progress of the HMCTS reform programme.

The ending of the Parliamentary session meant that the Courts and Tribunals (Online Procedure) Bill fell away without being completed. This, as acknowledged by HMCTS, means that progress on modernisation will be slower as it will be reliant on going through existing rules committees instead of the Online Procedure Rule Committee which the Bill was meant to be establishing.

Purdah also means no further official communications in relation to the whiplash reforms and the development of the online portal; and the increasingly common view among commentators is that the April 2020 implementation date can no longer be achieved.

The appeal courts however have been busy hearing a number of cases relevant to insurance claims handling and in the case of the Court of Appeal, there's been a noticeable reduction in the time between appeals being heard and judgments being handed down.

The month has ended with news of a report by IRN Research containing a finding that 43% of individuals would be willing to submit their claim to an online claims portal and complete the process themselves. This is based on responses from 503 consumers involved in a personal injury or clinical negligence incident.

We look at these developments below, along with our usual round up of forthcoming cases, and other issues on the horizon.

Casewatch

The last couple of months has produced a number of judgments in cases we have been following in the Supreme Court and Court of Appeal.

Of note are the judgments from the Supreme Court in XYZ v Travelers and Edwards v Hugh James Ford Simey (a firm).

There have been a number of decisions from the Court of Appeal including three on costs issues:

  • The Commissioner of Police of the Metropolis & Anor v Brown

  • Cham (by their Litigation Friend Laura Martin) v Aldred 

  • Adelekun v Lai Ho

There were also judgments on contempt in Jet 2 Holidays Ltd v Hughes and the calculation of future lost earnings in Irani v Duchon.

Head over to our new Casewatch page for further details, links to judgments and DWF updates, and a look ahead to forthcoming appeals.

Whiplash and small claims track reforms

Now that Parliament is dissolved and we are in pre-election purdah, updates on the reform process from the MOJ and MIB have ceased.

Nigel Teasdale has this week written a comprehensive update on the present position in relation to the reforms. This includes a look at the political party manifestos, concerns about the absence of rehabilitation under the proposed reforms, and ministerial clarification that children will still be caught by the damages tariff. He also addresses the elephant in the room that notwithstanding the lack of any official announcement in relation to the planned start date of April 2020, commentators across the industry are virtually unanimous in their view that implementation will be delayed.

For an overview of the reforms and recent developments, go to our Whiplash Reforms summary page.

Consultations

We are continuing to track relevant consultations on our new Current Consultations page.

Since we last reported, the government has responded to the Civil Liability Act report on savings provision consultation which Nigel Teasdale summarises in his latest update:

"Only insurance companies writing more than 100,000 policies will be required to report, which should cover 95% of the UK market. Insurers will be requested to provide figures relating to the entire premium earned, not just the personal injury aspect. This is to try and assess whether any savings from the Act have been passed on to customers, as well as look at the wider implications such as costs reducing in one area being replaced with costs rising in another such as motor damage and credit hire. Companies are not required to report until October 2023 but that report must contain details for each reporting year."

Also, before Parliament was dissolved, both the Justice Committee and the Public Accounts Committee published reports which were critical of the Court and Tribunal Reforms and their progress.

Recent Civil Procedure Rule Committee meeting minutes reveal developments in relation to the Credit Hire Model Order for Directions which has been agreed in principle although there is recognition that the issue needs to be considered alongside the wider whiplash reforms. There is also confirmation that there will be a rule change to CPR r.12.3 preventing default judgment being entered if an acknowledgment of service or defence is filed before judgment is entered.

Legislation

Our new Legislation page continues to track legislation of interest on the horizon. 

In a situation similar to 2017, The Courts and Tribunals (Online Procedure) Bill failed to complete its passage through Parliament before the end of the session. It will therefore make no further progress. As legislation is still required to establish a new Online Procedure Rules framework together with an Online Procedure Rule Committee, we would expect a version of this Bill to return in the new Parliamentary session.

We have also been tracking progress of the proposed amendments to the Motor Insurance Directive in the European Parliament. The new legislative term began on 2 July and in October the Conference of Presidents agreed to resume the consideration of this work.

News in brief…

Judicial College Guidelines: The 15th edition of the Guidelines for the Assessment of Damages in Personal Injury Cases was published on 26 November. Nigel Teasdale comments on the latest edition, looking in particular at how they address the proposed reforms under the Civil Liability Act 2018.

Clinical negligence fixed costs. In October, the Civil Justice Council published its long-awaited report on fixed recoverable costs in lower value clinical negligence claims. The working group reported that "the majority… has been able to agree on some things, but not to conclude an agreement on the level of fixed recoverable costs." Read more in Litigation Futures

Damages Based Agreements. In October, Professor Rachael Mulheron and Nicholas Bacon QC delivered the outcome of the review they were commissioned to undertake by the Ministry of Justice in December 2018, with a view to redrafting the Damages-based Agreements Regulations 2013 so as to resolve some of the difficulties which had arisen under those regulations. The headlines are a change from the Ontario Model to the Success Fee Model so that recoverable costs are paid in addition to the DBA payment and are not incorporated within it. There is also explicit permission for hybrid DBAs. Feedback was requested and will be collated into a supplementary report for the information of the Ministry of Justice. You can read more on the review in Litigation Futures and this opinion piece by Rachel Rothwell, editor of Litigation Funding magazine.

HMCTS court reform programme. As we report in our Consultations review above, the Parliamentary session ended with reports from both the Justice Committee and the Public Accounts Committee which were critical on the progress and direction of the reforms. Read more in the Gazette.

SRA Code of Conduct: new regulations. The SRA's new Standards and Regulations came into effect on 25 November and as the Gazette reminds us, that is also the date from which the Solicitors Disciplinary Tribunal will assess conduct cases using the civil rather than the criminal standard.

Independent Review of Legal Services Regulation. We have previously reported on this review being undertaken by the Centre for Ethics and Law in the UCL Faculty of Laws. It began in October 2018 and was due to report to the MoJ in January 2020. In September Head of the Review, Honorary Professor Stephen Mayson has published his interim report (pdf) which contains findings about the current regulatory framework, propositions for reform, and consultation questions on these propositions and the consequential issues they raise. This will now be followed by further meetings and discussions during the autumn. The consultation period has been extended to 20 December 2019 and the final report is now due in March 2020. Read more in the Gazette.

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

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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