Legal Watch What’s on the horizon April 2015
The discount rate Since the autumn of 2014, all has gone quiet on this subject.
In This Issue:
of the Lord Chancellor’s panel of experts on what to do
• The discount rate
There has been no news about the appointment or working about the discount rate.
Solicitors’ hourly rates It was 28 July 2014 when the Master of the Rolls rejected
recommendations to amend the guideline hourly rates which had already stood since 2010. Again there is no news of anything happening soon.
Coventry v Lawrence
• Solicitos’ hourly rates • Coventry v Lawrence • Insurance Act 2015 • The Criminal Justice and Courts Act 2015 • The Social Action, Responsibility, and
Heroism Act 2015
A seven-judge panel of the Supreme Court sat in February
• ‘Whiplash’ – soft tissue injury claims
Justice Act 1999 (under which the unsuccessful party can be
• Fatal accident claims – multiplier
the other side’s ATE insurance premium) are incompatible
• Part 36 offers
to consider whether the costs provisions of the Access to ordered to pay a ‘success fee’ of up to 100% of costs, plus with the Article 6 (ECHR) right to a fair trial. There were eight intervening parties. Judgment is awaited.
Insurance Act 2015 The Act will come into force in August 2016 and introduces into non-consumer insurance contracts provisions similar
to those in the Consumer Insurance (Disclosure and
Representations) Act 2012. Part 4 of the legislation provides
insurers with statutory remedies against first party fraudulent claims. On a date to be confirmed, Part 6 will implement the long awaited Third Parties (Rights Against Insurers) Act 2010 in a heavily amended form.
The Criminal Justice and Courts Act 2015 This Act came into force on 13 April 2015. It states that if in a personal injury claim ‘the court finds that the claimant
is entitled to damages in respect of the claim, but...on an
• Transferring cases to London • The knock-on effect of Delaney v Secretary
of State for Transport (2014)
• Draft Riot Compensation Bill and Draft Riot
(Damages) Bill
• Civil Procedure Rules Committee costs
budgeting working group
application by the defendant for the dismissal of the claim
under this section, the court is satisfied on the balance
of probabilities that the claimant has been fundamentally
dishonest in relation to the primary claim or a related claim...the court must dismiss the primary claim, unless it is
satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
The duty… includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
The court’s order dismissing the claim must record the amount of damages that the court would have awarded
to the claimant in respect of the primary claim but for the dismissal of the claim.’
The effect of this is that if part of a claim is tainted by fraud the court is required to dismiss the whole claim, including
any ‘legitimate’ element, unless the claimant would suffer ‘substantial injustice’. It also modifies substantially the Supreme Court ruling in Summers v Fairclough Homes Ltd (2012). It had been held that the court had power under
the civil procedure rules and under its inherent jurisdiction
to strike out a statement of case at any stage of the proceedings, even when it had already been determined
that the claimant was, in principle, entitled to damages in an ascertained sum. However, that power was to be exercised only where it was just and proportionate to do so, and that
was likely to be only in very exceptional circumstances. The power had not been exercisable in that case.
The new provisions are retrospective, save that they do not apply to proceedings commenced before 13 April 2015.
The Social Action, Responsibility, and Heroism Act 2015 The Act also came into force on 13 April 2015 and relates to events occurring on or after that date. It adds little, if anything, to the existing law but re-emphasises that in
considering a claim in negligence, the court must take
account of the context in which the alleged negligence occurred.
‘Whiplash’ – soft tissue injury claims As the result of amendments to the Civil Procedure Rules taking effect on 6 April 2015, medico-legal experts and
medical reporting organisations (MRO) will need to be
registered with MedCo in order to provide medico-legal
reports for RTA soft tissue injury claims. In addition, there will also be a new accreditation requirement for medicolegal experts and MRO. Solicitors are now required to
undertake ‘previous claims’ checks on potential claimants and to confirm to the defendant that this has been done.
Fatal accident claims - multipliers In Knauer v Ministry of Justice the claimant submitted that financial dependency up to the date of trial should be
treated as special damages, with a small discount for the
uncertainties of life but none for accelerated receipt, and that the multiplier for future loss should be calculated from the date of judgment, not death. The High Court judge
indicated that he would have followed that route had he been able to do so. However, he was bound by Cookson
v Knowles (1979) and Graham v Dodds (1983) to adopt the conventional approach.
We understand that the Supreme Court has granted
permission for the claimant to appeal the decision. The hearing is likely to take place late this year and if the
claimant is successful we will see the implementation of the approach to fatal accident calculations that has been advocated for many years by the Ogden working party.
Part 36 offers A completely re-written form of Part 36 came into force on
6 April but with few substantive changes. It is now possible to make time limited offers but once the offer is withdrawn, the costs protection under Part 36 is lost.
Transferring cases to London From 6 April it will become much harder to transfer a case
from the provinces to London. This has tended to happen in the past to ensure that a trial was dealt with by a High
Court judge in the capital, rather than by a deputy High Court judge outside. That is unlikely to be accepted as a valid reason in a majority of even high value personal injury claims.
The knock-on effect of Delaney v Secretary of State for Transport (2014) We are already aware of claimant solicitors looking to
challenge the remaining defences/exemptions currently available in motor claims, particularly in MIB/Article
75 cases. There is a real risk that these provisions will
steadily be eroded to reflect the intention of the EU Motor Directives that all victims of road traffic accidents should be compensated.
Draft Riot Compensation Bill and Draft Riot (Damages) Bill The government is fundamentally reforming the statutory provisions relating to claims for compensation following
riots. The executive summary to the government’s response to the consultation lists the following as requiring changes to the existing (antiquated) Act:
1. The definition of a riot is to be based on that in the Public Order Act 1986
2. There is to be a cap on the money paid in respect of any one claim
3. Cover for vehicles will be limited to those not insured against loss from riot
4. Consequential loss will not be recoverable 5. A Riot Claims Bureau is to be established so that
major and/or widespread incidents may be handled more efficiently.
Civil Procedure Rules Committee costs budgeting working group No doubt to reflect the concerns about how costs budgeting
is working, a committee is to be established to consider how the system may be improved.
Publications If you would like to receive any of the below, please email indicating which you would like to receive. Weekly: • Legal Watch: Personal Injury Monthly: • Legal Watch: Property Risks & Coverage Quarterly: • Legal Watch: Counter Fraud • Legal Watch: Health & Safety • Legal Watch: Professional Indemnity • Legal Watch: Disease
Contact Us
For more information please contact: Geoff Owen, Learning & Development Consultant T: 01908 298216 E: gro@greenwoods-solicitors.com
To unsubscribe from this newsletter please email: crm@greenwoods-solicitors.com
www.greenwoods-solicitors.co.uk
www.plexuslaw.co.uk
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: Renaissance, 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.