Legal WatchWhat’s on the horizonOctober 2014

In This Issue:

• Jackson/Mitchell

• Pre-action protocols/whiplash

• Costs

• Costs budgeting

• Discount rate

• Pre-medoffers

• Asbestos claims

• Insurance Bill

• Heroism Bill

• Deafness claims

• Coventry v Lawrence

• Multi-track Code

• Reform of private motor insurance

Jackson/MitchellWe wait to see just how far back the pendulum will swing in the light of the Court of Appeal’s judgment in Denton. However,someoftheearlierfirstinstancedecisionsunderMitchell are now being overturned on appeal. However, in Hockley v North Lincolnshire & Goole NHS Trust the court applied Denton when refusing the defendant’s application to set aside a default judgment.

Pre-action protocols/whiplashWhiplash reform proceeds at pace with a one month only consultation about introducing a panel of accredited medical experts to report in soft tissue injury cases. In our response we have stressed the importance of properly ‘policing’ this panel and for there to be a mechanism for raising concern about any expert whose evidence does not appear to be objective. Where do medical reporting organisations feature in this? Can they secure the necessary volume of business to remain viable if only instructed on a cab rank basis?

CostsPerhaps inevitably, Jackson LJ is promoting the extension offixedcostsregimesnotonlytonon-personal injuryfasttrack claims but also to lower value multi-track cases. Is thisthestartof‘missioncreep’towardsfixedcostsacrossthe board for certain classes of case, irrespective of value?

Costs budgetingMeanwhile, there is growing concern about the future of costs budgeting. Senior members of the judiciary appear to recognise that many judges do not have the necessary skills to deal with costs budgeting in its current form while a number of Queen’s Bench Masters are calling for a more streamlined system. Backlogs of up to 10 months are reported for costs management hearings.

Discount rateOne step forward and two steps back as the Lord Chancellor has indicated that he is proposing to appoint a panel of three experts(notyetidentified)toadvisehimonthistopic.Whatnow seems likely is that by the time a decision is made here interest rates will be on the rise and even if a reduction in the rate should have taken place, it will no longer be necessary.

Pre-med offersThe government has not gone through with its threat to prohibit these but has weakened their effect to a limitedextent by removing any costs consequences even from offersmadeunderPart 36 until 21 days after the defendant has been served with a fixed costs medical report.(This applies to cases where a CNF is served on or after 1/10/2014).

Asbestos claimsThere has been a successful challenge, by way of judicial review, of the consultation carried out by the Secretary of State for Justice before bringing in the costs provisions in Ss 44 and 46 Legal Aid, Sentencing and Punishment of Offenders Act 2012 into force in respect of mesothelioma claims.TheconsultationhadnotfulfilledtherequirementinS48forareviewofthesections’likelyeffectsinrelationtosuch claims by liaising adequately with consultees.

Insurance BillIf passed into law, this will introduce into commercial insurance contracts provisions similar to those governing consumer contracts introduced by the Consumer Insurance (Disclosure and Representations) Act 2012. It will also provide insurers with remedies for first party insurancefraud. Part 6 willamendandinduecoursebringintoeffectthe Third Parties (Rights Against Insurers) Act 2010. Thelatest news is that the bill has been committed to a Special Public Bill Committee.

Heroism BillThe House of Commons Public Bill Committee reported back to the House on 14th October but this looks like another damp squib as the proposals go no further than what is already contained in the Compensation Act 2006. The bill received its third reading on 20/10/2014.

Deafness claimsJust as whiplash claims are seemingly being brought under control, a surge in deafness claims is reported. There is concern that as the bottom drops out of the low-value motor market,claimantfirmsarediversifyingintovarioustypesofindustrial disease claim.

Coventry v LawrenceWere CFA uplifts and ATE premiums payable by a defendant always illegal? The view we have formed is that even if a successful challenge is mounted it will have no impact on concluded cases andwill affect only a limited number ofclaims in which costs are outstanding. The benefit to apayingpartyofwaitingwillprobablybeoffsetbyadditionaladministrative costs and the interest payable on any unpaid costs due to the receiving party.

Multi-track CodeDiscussions are underway between claimant and defendant organisations to try to reinvigorate the voluntary multi-track code. While improved levels of cooperation are to be encouraged, will pre-action behaviour ever be adequately policed without there being in place a mandatory protocol carrying meaningful penalties for non-compliance?

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

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Geoff OwenLearning & Development ConsultantT: 01908 298 216E: gro@greenwoods-solicitors.com

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Reform of private motor insuranceOn 24 September the Competition and Markets Authority (CMA) published its final report. The followingrecommendations have been made for reform:

• A ban on agreements between price comparison websites and insurers which stop insurers from making their products available more cheaply on other online platforms

• Better information for consumers on the costs and benefitsofno-claimsbonusprotection

• A recommendation that the Financial Conduct Authority (FCA)looksathowinsurersinformconsumersaboutother products sold as add-ons to car insurance policies

However, the CMA has not in anyway progressed the fundamental reform of credit hire and the concern that ‘at fault’ insurers have little control over the damages that may be claimed by the not at fault victim and his insurer.