News Category 2
Apil's Response to the Chancellor’s Autumn Statement
26/11/15. George Osborne said yesterday that the government will consult on ending the right to cash compensation for minor whiplash injuries. In response, Jonathan Wheeler, the president of APIL said:
"In 2012 the insurance industry promised the Government that if reforms to the way whiplash claims are handled were introduced, savings would be passed on to motorists through their premiums. All that has changed since then is that the insurance industry has failed to live up to its own promises. Since 2012 the portal (a streamlined system for dealing with personal injury claims) has been extended, medical reporting for whiplash claims has been completely overhauled, sharing of fraud data has been introduced and solicitors fees have been slashed. Government figures show whiplash claims have fallen by more than a third in the past four years. Yet still insurance premiums have increased.
Only two years ago the Government ruled out increasing the small claims court limit because there were no adequate safeguards to protect genuine claimants. There are still no adequate safeguards. If the small claims court limit is raised to £5,000 all that will happen is that genuine victims of injury will not be able to afford the legal help they need to bring genuine claims and there will be an epidemic of cold calling from claims management companies as they rush to take advantage of vulnerable people who won’t be able to afford legal representation. We need to remember that these are people who have been needlessly injured by the negligence of others. Removing the right to damages for pain and suffering would show a callous indifference to the suffering of people who were needlessly injured by the negligence of others."
Also, the chief executive of APIL, Deborah Evans, wrote:
"Did I miss something? The Chancellor’s Autumn statement…
It came from nowhere and makes a mockery of justice for the injured. I am incensed.
It rides roughshod over everything we are doing to date to improve costs and reduce fraud in whiplash claims.
Medco are looking to accredit 1000 medics in 2016 who may never be needed to do an expert report on soft tissue injuries again. To place these cases in the small claims court removes all checks and balances for fraudulent and spurious claims.
It rides roughshod over the effective system of online dispute resolution that is the Claims Portal - emptying it of the majority of claims, and instead filling up the courts.
It rides roughshod over the basic principle of holding the wrongdoer to account - you could injure someone negligently with no consequences. We would live in a world where you get compensation if your train is half an hour late, but not if someone carelessly crashes into you and leaves you in pain for months.
It rides roughshod over the value of legal advice - lawyers ensure only justified cases proceed, screen out poor cases, and fight so that those injured get the right amount of damages - not too much, not too little. Now those injured will be expected to fight their cases without help or advice, against big insurers.
It is, however, a business opportunity for claims management companies, who can offer to organise a claim on an injured person’s behalf, much like they have for PPI claimants, for a handsome cut. We could have an explosion of unsolicited calls and texts to look forward to.
How does this affect current government reforms to introduce fixed costs in claims against the NHS? Are such claims now also to be directed to the small claims court if they are worth less than £5000?
Big proposals. Big issues. Yet so far, little attention from the media because the proposals are buried under headline grabbing issues. Fundamental reforms sneaking in through the back door. This isn't justice."
Editorial: Reflections on Costs Management - Aidan Ellis, Temple Garden Chambers
25/11/15. Now that costs budgeting has been a feature of civil litigation, at least on the multi-track, for some time, it ought to be possible to offer some considered assessment on the merits of the budgeting process. That it remains difficult to offer such an assessment is largely because the approach to budgeting remains inconsistent. It begins before the hearing. Some Courts list costs management hearings by telephone, others specifically direct that they are unsuitable for telephone hearings. Some Courts require the parties to file a consolidated table allowing the rival budgets to be compared, others require a written summary of the points of dispute and still others require nothing in writing beyond the budgets themselves. The hearing time allowed varies considerably. These issues could, of course, be easily resolved by some centralised guidance or standard order. In the hearing itself, the approach taken by individual judges to the level of scrutiny applied to the budgets remains inconsistent – though anecdotally there are some signs that further training / guidance is leading to a more unified approach. Less Judges, for instance, are fixated on the hourly rates claimed, with more simply factoring the rates in to an overall assessment of costs of each phase.
Another teething problem is that it can be difficult to time the costs budgeting hearing. It can be impossible in a personal injury claim to try to budget at an early stage, particularly when it is unclear whether further medical evidence is required by either party. Alternatively, delaying the budgeting hearing can frustrate the process, because more costs slip into incurred costs – although the Court can comment on incurred costs, in my experience many Judges are reluctant to do so. Perhaps early budgeting needs to be combined with a greater willingness to allow amendments to budgets as litigation progresses.
It is difficult to tell what effect budgeting is having on the conduct of litigation. It may still be too early to tell whether greater transparency about costs encourages the parties to settle claims (conceivably knowing the likely limit of their exposure to costs might actually encourage parties to fight cases). Further research is probably required.
The cost of the budgeting process is high (it encompasses not only the cost of preparing the budget, but also the costs of negotiating (including preparing such points of dispute as the Court requires) and attending the cost management hearing). The demand placed on Court time is also considerable; absent agreement, costs management hearings cannot be done quickly. As a result, as the third anniversary of the Jackson reforms approaches, a rigorous assessment is perhaps required of whether costs budgeting has achieved it goals.
Aidan Ellis
Temple Garden Chambers
Image ©iStockphoto.com/bluestocking
Gamsby v Rowland - Mark Holmes, DWF
21/11/15. County Court at Birmingham, 22 September 2015, Before Deputy District Judge Rose – 22/9/15. A claim was dismissed after it was found to be fundamentally dishonest, resulting in the Claimant being ordered to repay an interim payment made to him and the Defendant’s costs. Mark Holmes takes us through his case of Gamsby v Rowland, where the judge made a finding of fundamental dishonesty, even though fraud was not pleaded against the Claimant. As a result of the finding of fundamental dishonesty, the Defendant was permitted to enforce not only the final costs order against the Claimant but also an interim costs order, arising from the Defendant’s successful application to resile from a pre-action admission of liability.
Background
The Claimant, Anthony Gamsby had sought damages for personal injury and a number of items of special damage following a road traffic accident on the 7 June 2013, involving a vehicle being driven by the Defendant, Vivien Rowland and a second vehicle driven by Charlotte Rothero. The Claimant’s version of events was that the Defendant had exited a side road and collided with Rothero’s vehicle pushing it into contact with his stationary parked vehicle...
Image ©iStockphoto.com/tap10
Compulsory Volunteers: Will the Scottish Pre-Action Protocol Become Mandatory? - Ciaran Dougherty, Brodies LLP
18/11/15. Previous updates from North of the Border demonstrate that Scotland’s PI claim landscape is undergoing significant change. Court reforms and a review of the costs regime have scrutinised various parts of the claims process. That includes the pre-litigation stage where unlike England and Wales, no compulsory framework has ever applied to negotiating claims. That may change soon writes Ciaran Dougherty, a senior solicitor with Brodies LLP’s PI recovery team.
The Scottish Pre-Action Protocol for Personal Injury Claims is a voluntary agreement. It dates from 2005 and was signed between the Forum of Scottish Claims Managers (FSCM), (a lobbying organisation representing a number of insurers, financial institutions and two of Scotland’s local authorities) and the Law Society of Scotland.
The protocol provides time limits for investigation, settlement and a scale of settlement fees. It was hoped by many in the industry that it would assist third parties and claimants have meaningful pre-litigation negotiations, particularly on claims below £10,000...
Image ©iStockphoto.com/brians101
"All Experts Are Equal…": A Twelve Step Programme for Good Experts - Will Waldron QC, Exchange Chambers
16/11/15. In a recent article looking at the role and duties of experts, and the ways in which some have fallen foul of them, I quoted from Janet Smith LJ in the case of Uren when she said: “When an expert witness makes a bad point, it damages his authority and his opinion on other potentially better points is undermined”.
It is about as concise a statement of the truth of ill judged expert evidence as you could find. Drawing upon a nautical analogy, a ship once sufficiently holed below the waterline will keep taking on water until it sinks. An expert damaged in similar fashion will scupper your case, probably with all hands lost! I dare say we all have examples to give of the moment in evidence that the heart began to race a little faster, often as the judicial eyebrow was raised in disapproval, when we heard our expert try to defend the indefensible or justify the unjustifiable.
One glaring example springs to my mind. It occurred at a time when I could still rightly claim the bright eyed ground of youth during an examination in chief (remember them?!) of a medical expert. I had spent a happy hour with him in conference before the hearing, during which time I had confirmed his opinion and, more to the point, understood just why he regarded his opposite number as a nincompoop. Thus armed, I rose to my feet confidently to get down to business only to find myself having one of those “Would Your Honour give me a moment?” moments. I turned to my instructing solicitor, gasping for air and as pale as the wig on my head, to enquire whether I had suffered an auditory hallucination. The expert had just...
Image ©iStockphoto.com/J-Elgaard
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- PI Practitioner, November 2015
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