Legal Watch What’s on the horizon October 2014
Jackson/Mitchell We wait to see just how far back the pendulum will swing
In This Issue:
However, some of the earlier first instance decisions under
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Jackson/Mitchell
Hockley v North Lincolnshire & Goole NHS Trust the court
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Pre-action protocols/whiplash
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Costs
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Costs budgeting
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Discount rate
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Pre-med offers
we have stressed the importance of properly ‘policing’ this
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Asbestos claims
about any expert whose evidence does not appear to be
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Insurance Bill
in this? Can they secure the necessary volume of business
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Heroism Bill
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Deafness claims
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Coventry v Lawrence
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Multi-track Code
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Reform of private motor insurance
in the light of the Court of Appeal’s judgment in Denton.
Mitchell are now being overturned on appeal. However, in applied Denton when refusing the defendant’s application to set aside a default judgment.
Pre-action protocols/whiplash Whiplash 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 panel and for there to be a mechanism for raising concern
objective. Where do medical reporting organisations feature to remain viable if only instructed on a cab rank basis?
Costs Perhaps inevitably, Jackson LJ is promoting the extension of fixed costs regimes not only to non-personal injury fast
track claims but also to lower value multi-track cases. Is this the start of ‘mission creep’ towards fixed costs across the board for certain classes of case, irrespective of value?
Costs budgeting Meanwhile, 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 rate
Heroism Bill
One step forward and two steps back as the Lord Chancellor
The House of Commons Public Bill Committee reported
experts (not yet identified) to advise him on this topic. What
another damp squib as the proposals go no further than
has indicated that he is proposing to appoint a panel of three
now 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 offers The government has not gone through with its threat to prohibit these but has weakened their effect to a limited
extent by removing any costs consequences even from
offers made under Part 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 claims There 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. The consultation had not fulfilled the requirement in S48 for a review of the sections’ likely effects in relation to such claims by liaising adequately with consultees.
Insurance Bill If 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 insurance fraud. Part 6 will amend and in due course bring into effect
the Third Parties (Rights Against Insurers) Act 2010. The
latest news is that the bill has been committed to a Special Public Bill Committee.
back to the House on 14th October but this looks like what is already contained in the Compensation Act 2006. The bill received its third reading on 20/10/2014.
Deafness claims Just 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, claimant firms are diversifying into various types of industrial disease claim.
Coventry v Lawrence Were 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 and will affect only a limited number of claims in which costs are outstanding. The benefit to a
paying party of waiting will probably be offset by additional administrative costs and the interest payable on any unpaid costs due to the receiving party.
Multi-track Code Discussions 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?
Other Publications
Reform of private motor insurance On
24
September
the
Competition
and
Markets
Authority (CMA) published its final report. The following recommendations 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
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Monthly: •
• Better information for consumers on the costs and benefits of no-claims bonus protection
• A recommendation that the Financial Conduct Authority (FCA) looks at how insurers inform consumers about
other 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.
Legal Watch: Personal Injury Legal Watch: Property Risks & Coverage
Quarterly: •
Legal Watch: Counter Fraud
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Legal Watch: Health & Safety
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Legal Watch Marine
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Legal Watch: Professional Indemnity
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Legal Watch: Disease
Contact Us
For more information please contact: Geoff Owen Learning & Development Consultant T: 01908 298 216 E: gro@greenwoods-solicitors.com
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