Kerry Underwood

Archive for January 2013

CLINICAL NEGLIGENCE AND ATE RECOVERABILITY

with 4 comments


On 24 January 2013 the Recoverability of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 were laid before Parliament and come into force on 1 April 2013 – click here.

By Paragraph 2 it provides that a court may make a costs order in relation to an ATE premium, or indeed a BTE premium, incurred in relation to experts’ reports, but Paragraph 2(2) provides that such a costs order may not require payment if

(a)           the report was not in the event obtained;

(b)          the report did not relate to liability or causation; or

(c)           the cost of the report is not allowed under the costs order.

There is no limit to the number of reports, but if the court has not ordered the defendant to pay the cost of the report, then the insurance premium in relation to that report is not recoverable, so, for example, you cannot recover the premium in relation to a report that you choose not to use.

The report must relate to liability or causation, but can cover other matters, typically quantum, as well.

Only that part of the premium dealing with reports, not giving evidence, answering questions, experts’ meetings etc, is covered.

All of this is a huge improvement on the issues raised in the consultation paper.  In particular out go:

–               any limit on the number of reports;

–               any limit on the costs of those reports;

–               any limit on the ATE premium;

–               any requirement to give notice to the defendant;

–               any restriction on a liability/causation report also dealing with quantum.

A full analysis of all aspects of the abolition of recoverability, including in relation to clinical negligence, appears in my blog AFTER-THE-EVENT INSURANCE – ABOLITION OF RECOVERY – click here.

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Written by kerryunderwood

January 30, 2013 at 2:05 pm

Posted in Uncategorized

PERSONAL INJURY SMALL CLAIMS LIMIT AND THE MINISTRY OF TRUTH

with 17 comments


Less than three months to Jackson Day and the Ministry of Justice is disintegrating.

On 11 December 2012 it published a consultation paper , with consultation ending on 8 March 2013, entitled

“Reducing the number and costs of whiplash claims”

The Foreword is Orwellian. Witness this paragraph:

“With every fraudulent and every exaggerated insurance claim that goes unchallenged the premium of each motorist increases. Insurers estimate that the cost of whiplash claims from road traffic accidents, which comprise 90% of relevant personal injury claims, to the average policy-holder is £90 per year. This is not a victimless problem.”

Note the non-sequitur, that is the mention of fraud followed by the saving if ALL claims, including the overwhelming majority which are genuine, are barred.

The consultation is predicated upon three obviously false assumptions
(1) Insurers cannot afford to defend fraudulent claims (Paragraphs 8, 10, 24, 26, 29, 58, 59, 63)
(2) Doctors are liars or at best incompetent (runs right through the report – Foreword, Paragraphs 3, 6,
19, 21, 24, 25, 31-45)
(3) Judges are incapable of trying cases and deciding against fraudulent parties (Foreword, Paragraph 24)

The Government presents two options for change:
1. Raising the small claims limit to £5,000 for just those road traffic accident involving whiplash
injuries;
2. Raising the small claims track limit to £5,000 for all road traffic accidents.

No-one should respond to this consultation; that merely validates the Ministry of Truth and will make no difference anyway.

The Government recognizes that Option 1 would add further complexity by creating early arguments over the classification of the injury.

Thus the most likely outcome is an increase in the small claims track limit to £5,000 for all road traffic accident claims.

The Government, bizarrely, believes that the small claims track procedure is more suitable for dealing with claims involving alleged fraud.

Paragraph 60 “Consequently the Government in consulting on options that would bring more PI or whiplash claims arising from RTAs into the small claims track, thereby providing a better framework for the challenging of fraudulent or exaggerated claims.”

See also Paragraph 63: “The intended result of an increase to the limit would be to allow more relatively straightforward cases to be heard in the Small Claims court with the additional benefit of making it more economic for insurers to challenge fraudulent and exaggerated claims. The Small Claims track is a less costly regime in which to bring a case, and therefore a less costly one in which to challenge questionable whiplash injuries.”

The Government recognizes that without costs recovery claimants are more likely to represent themselves in the small claims track. (Paragraph 66, 68).

So there we have it. It is the stated policy of the Ministry of Justice to have, in the small claims court, self-represented claimants dealing with allegations against them of fraud made by insurance companies who will no doubt be represented by lawyers, something fully recognised by the Ministry (Paragraph 66).

Am I alone in thinking that every Judge in every court in the land will allocate such a case to the fast-track, or even the multi-track?

The consultation comes just 22 days after the separate consultation on new Fixed Recoverable Costs, published on 19 November 2012, including new figures for road traffic accidents up to £5,000.

At paragraph 79 of the current document the Ministry states:

“…the Government has announced the intention to extend the RTA Protocol (sic) by April 2013 to include claims up to £25,000, and to incorporate employers’ and public liability accident claims.

(The Minister means the Portal, not the Protocol. Protocols for all personal injury matters have been in for years).

On 21 December 2012, that is just 10 days after this paper was published the Government announced a delay in the portal changes, presumably because of the Judicial Review proceedings. Note that the Government is proposing to make such Judicial Review proceedings very much harder to bring.

So the timeline is:

19 November 2012 – Proposal for new Fixed Recoverable Costs including £1,000 – £5,000 band for road traffic accidents, for all matters not in the new portals.

11 December 2012 – Consultation on raising small claims limit, taking into account portal extension from April 2013, which would render pointless the above band proposed just 22 days earlier.

21 December 2012 – Portal extension delayed

That is three changes of policy in 32 days.

This is not a victimless solution. All of those genuine victims of road traffic accidents risk losing out. I have suffered whiplash; it hurts and it restricts normal social and sporting activity and it is long-lasting.

I am as against fraud as anyone and support lengthy prison sentences for those found guilty, but to restrict access to courts to all innocent people is absurd and wrong.

Getting rid of the, say, 10% of fraudulent claims may save £9 a year on a typical insurance premium. Insurers have not spent millions on contributions to the Conservative Party to achieve that. How strange that Her Majesty’s Government believes that insurance companies, with the most vested interest of all, are better able to judge fraud than Her Majesty’s Judges.

Why not get the Norwich Union to run the Old Bailey?

It follows as night follows day that the cost to insurance companies of successfully defending a claim in a costs-bearing track is less than in the small claims track as the insurance company recovers most of their costs from the claimant.

If the problem is claimants standing to win and recover costs, with the poor old multi-national insurance company unable to afford to defend the claim, where does Qualified One Way Costs Shifting fit in?

This is about slashing genuine claims so as to make more profits for insurance companies.

The irony is that it will almost certainly have the opposite effect.

Freed from depending on legal fees payable by defendants’ insurance companies, solicitors will switch to contingency fees and be far better remunerated, so firms like mine who have abandoned such work will return to the fray, so expect an increase, not reduction, in claims.

Also the political pressure on an incoming Labour Government to create a state insurance company is growing and will continue to grow.

Even if I am wrong about all of that, what is the point of insurance companies who do not insure anything? These lovers of the free market conveniently forget to mention that their role is wholly dependent upon the fact that motor insurance is compulsory, a gross interference with the free market.

Some clear, logical, coherent, consistent thought from the Ministry of Justice would be most welcome. Prentice, Djanogly and now Grant. What have we done to deserve this?

I too survey that endless line
of men whose thoughts are not as mine

A. E. Housman – A Shropshire Lad

Please see my related blog:-

SETTLEMENT AGREEMENTS IN PERSONAL INJURY

Written by kerryunderwood

January 4, 2013 at 12:37 pm

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