News Category 2
Are There Discernable Trends in the RTA Claims Sector? - Ian Miller, 1 Chancery Lane
22/09/15. How effective have recent reforms been in reducing the number of road traffic injury claims and their associated costs? The Institute and Faculty of Actuaries reports there has been a slight rise in claims by 1.7% between 2013 and 2014 which is less than suggested by the portal where claims notifications are back to pre-LASPO* levels. Average costs of claims are also increasing again (by 3%). These conclusions are drawn by the Institute’s interim findings on 2014 data.
The number of claims fell by 9.9% between 2012 and 2013 which is consistent with MoJ Portal Statistics. The reduction in average costs in 2013, following the introduction of LASPO, was 15%. Understandably, however, the Institute says that the long-term effects of legal changes (such as those introduced by LASPO) remain uncertain.
The turnover of authorised personal injury claims management companies reduced from £455m in the first quarter of 2012 to £354m in the same quarter in 2013 and then to £238m in 2014. However the first quarter of 2015 saw turnover rise by 30% to £310m.
Meanwhile motor insurance premiums have risen by an average of 2% per year between 2008 and 2015. That said, the first quarter of 2015 has demonstrated...
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Secondary Victims: Are the Newly Restrictive Rules From the Court of Appeal Now Being Tightened Even Further? - Kirsten Wall, Leigh Day
17/09/15. The long awaited Court of Appeal case of Ronayne –v- Liverpool Women’s Hospital NHS Foundation Trust has, seemingly, made the restrictions on secondary victim claims set out by the House of Lords in Alcock –v- Chief Constable of South Yorkshire Police even tighter.
The policy decision behind the ‘dearness, nearness and hearness test’ laid down in Alcock was clearly, and perhaps understandably, to prevent the Courts being inundated with secondary victim claims for bystanders. One must therefore wonder whether the Court of Appeal in the Ronayne case decided to tick off another group of potential secondary victims – Hospital visitors.
Although this might be a sensible policy decision, the subsequent case of Owers –v- Medway NHS Foundation Trust has taken this even further, perhaps too far?
The Ronayne case was bought by Mr Ronayne for the psychiatric injury he sustained after witnessing his wife in hospital after suffering peritonitis and septicaemia as a result of a negligently misplaced suture during a hysterectomy operation. Mr Ronayne contended that there were two events over the course of a 36 hour period that he found particularly distressing, the first was witnessing his wife attached to drips and monitors in the Hospital before the repair surgery was performed and the second was after that surgery when he saw her connected to a ventilator and was very swollen in appearance...
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PI Practitioner, September 2015
16/09/16. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Costs on the Small Claims Track: Unreasonable Behaviour
This is an exception to the rule that the only costs recoverable in a small claim are the fixed costs listed in rule 27.14 (2).
Rule 27.14 (2) (g) states: 'The court may not order a party to pay a sum to another party in respect of that other party's costs, fees and expenses, including those relating to an appeal, except - (g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably'. Further, 'a party's rejection...
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An Update from North of the Border: Scottish Court Reforms To Take Effect From 22nd September - David Stihler, Brodies LLP
11/09/15. The Courts Reform (Scotland) Act 2014, referred to by Lord Gill as “the single most important piece of legislation in the field of civil justice for over a century”, is designed to maximise the efficiency and the output of the Scottish courts. Many of its key provisions will take effect from 22 September 2015.
Although there are some changes to procedure in the Court of Session (Scottish High Court), the primary aim of the legislation is to move all court actions with a realistic value of up to £100,000 from the Court of Session to the Sheriff Courts (County Court equivalent). Should defenders challenge the raising of an action in the Court of Session based on its value it will be for pursuers to demonstrate that the claim would be likely to attract an award of £100,000 or more, This may prove a useful device for defenders to seek the early disclosure of evidence, which is not currently required in the Scottish jurisdiction.
All claims below the £100,000 threshold must be raised in a Sheriff Court in the first instance, although it will be open for pursuers to argue that a case is sufficiently complicated to make it suitable for transfer to the Court of Session.
There are numerous provisions for the transfer of cases between the Sheriff Court “tracks” and between the Sheriff Court and Court of Session, although it is anticipated that where a case is properly raised at the Sheriff Court level it is unlikely to be transferred to the Court of Session. Conversely, where an action has been raised in the Court of Session and its value does not realistically appear to be in excess of £100,000 there is a presumption that it will be sent to the Sheriff Court. Accordingly, should a defender challenge the value of a claim raised in the Court of Session, or, arguably, its complexity, it will be for the pursuer to demonstrate that the claim has been reasonably raised in that forum.
As a result of the reforms, there can be little doubt that the Sheriff Courts will face an influx of personal injury claims; given that they represent a significant volume of civil cases with a value below the £100,000 threshold. To deal with the anticipated rise in the number of cases a specialist personal injury court with Scotland-wide jurisdiction will operate from Edinburgh Sheriff Court. The All Scotland Personal Injury Court will have six Sheriffs with powers to deal exclusively with: personal injury claims with a value greater than £5,000; workplace-related claims with a value greater than £1,000; and any other case where “special cause” is established to have the claim run in the specialist court. The theory is that having Sheriffs dealing only with qualifying personal injury claims will allow for the expeditious and efficient processing of such claims, which have been said to clog up the court system.
As it will remain open to pursuers to raise personal injury actions in a local Sheriff Court, the All Scotland Personal Injury Court will not necessarily always be the ‘go-to’ court. That noted, an incentive for pursuers to raise actions in the in that forum will be the right to seek a civil jury trial just as they can in the Court of Session This is a first for the Sheriff Court, and remains restricted to the All Scotland Personal Injury Court. It may lead to a significant increase in the number of Scottish injury claims proceeding through jury trials, but pursuers will be wary of the recent Scottish case (Ferguson v Ferguson [2015] CSIH 63) which serves as a stark reminder that a jury trial does not always favour the pursuer. To avoid a civil jury trial when requested by a pursuer, just as in the Court of Session, the onus will be on the defender to persuade the court that the case is not be suitable for a jury due, for example, to complexity.
In light of these reforms, and in particular the substantial increase in the Sheriff Court’s privative jurisdiction, pursuers’ firms have raised concerns that injured parties may lose the expertise and independent input of counsel that they previously enjoyed in the Court of Session. The current approach is that counsel must be sanctioned to act in a Sheriff Court action if it is reasonable to do so and that sanction is currently granted on a staged basis. It is anticipated however that rules may be implemented to allow pursuers to seek the sanction of the court for counsel to act from the start to the finish of an action in the Scottish Personal Injury Court; which may prove costly for defenders.
The most significant change to Court of Session procedure is the introduction of a three-month time limit to raise judicial review proceedings, and the requirement for court approval to bring such proceedings; which will be a comfort to parties operating where there is a risk of a judicial review being sought.
Additional reforms, including the establishment of a Sheriff Appeal Court and the roll-out of a new ‘simple’ procedure to consolidate Small Claim and Summary Cause actions, which will be handled by a new tier of judiciary known as ‘summary sheriffs’ have yet to be implemented.
Broadly, it will be a matter of waiting to see how practice will evolve around the reforms before their full impact will be realised; but they are anticipated to be the greatest shake-up of litigation in Scotland for generations. Perhaps of even greater interest than the effect of the court reforms will be their impact on the costs of litigation – which will be explored in the next update from North of the Border.
David Stihler
Associate
Brodies LLP
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Telematics - Peter Wilson, Park Square Barristers
09/09/15. Many vehicles are now fitted with tracking devices. Such devices allow the owner to locate the vehicle if it goes missing. In the past tracking devices were most often fitted to high value vehicles. Increasingly, however, tracking devices are being fitted to other vehicles such as fleet cars and hire cars. Some people agree to allow their motor insurer to fit a tracking device to their car so that their driving performance can be monitored. This is done in the hope the insurer will reduce their insurance premiums over time. Tracking devices are sophisticated in terms of the information they record. The science associated with tracking devices is called telematics. This article explains how telematics works and the forensic value of the data to drivers, insurers, lawyers and the courts.
How it works
A tracking device records and stores information. It then sends that information to a remote server where the same is permanently stored. Satellite communications and mobile telephone technology is used by the device to both receive information (in particular information regarding the vehicle’s position) and to send information to...
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More Articles...
- Future Loss of Earnings at £1,446.431: A High Court Case Examined - Gordon Exall, Zenith Chambers
- Breach of Statutory Duty After the Enterprise and Regulatory Reform Act 2013, A Scottish Decision: Daleks Are Not That Dangerous After All - Gordon Exall, Zenith Chambers
- Editorial: Consultation on Court Closures - Aidan Ellis, Temple Garden Chambers
- Secondary Victims: a Race Between the Claimant and the Ambulance? - Brenna Conroy, Hardwicke
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