The real plaintiff lawyer costs in personal injury claims

Transcription

1 costs in personal injury Jason Kroeger, SIRA & Kenneth Chua, EY sira.nsw.gov.au

2 Outline Background & Regulation Claims Cost Disclosure Portal Scheme Efficiency Detailed Findings Further Developments

3 Background & Regulation Jason Kroeger, SIRA sira.nsw.gov.au

4 Background A long standing issue Prior to the Claims cost disclosure project the State Insurance Regulatory Authority (SIRA), had no knowledge or transparency of legal costs being charged to the claimant from their legal provider. In 2008 the SIRA engaged an external firm, to review a sample of individual claim files to assess the full extent of legal costs Despite the review confirming some of the anecdotal evidence, the review was on a sample of only 56 across 25 law firms In October 2015 the regulation was amended to allow the inception of the CCD project

5 Regulation Key function of the regulation To regulate the maximum recoverable costs for: legal; and medico- legal services provided in relation to motor accidents

6 Regulation Rationale for regulation To ensure that transaction costs relating to motor accidents do not unreasonably contribute the cost of CTP payable by NSW motorists

7 Regulation Clause 23 (Oct 2015): Determining efficiency of the scheme 23 (1) The object of this clause is to enable the Authority to obtain information about costs in order to advise the Minister as to the efficiency and effectiveness of the motor accidents scheme under the Act. 23 (2) It is the duty of a legal practitioner who represents a claimant when a claim is finalised (regardless of whether damages are to be paid to the claimant) to ensure that the Authority is provided, in the manner and time approved by the Authority, with a costs breakdown in relation to the claim.

8 Regulation Clause 23 (Oct 2015): Determining efficiency of the scheme 23 (3) The duty in sub-clause (2) applies to all regardless of whether the claim is exempt from assessment under section 92 of the Act or whether there has been contracting out under clause 8 of this Regulation. However, the duty does not apply to a claim in a motor accidents matter if the claimant incurs no legal fees in the matter. 23 (4) If a barrister and a solicitor act for a claimant, the duty in sub-clause (2) falls on the solicitor and not the barrister.

9 Regulation Clause 23 (Oct 2015): Determining efficiency of the scheme 23 (5) The Authority may provide any information contained in a costs breakdown to the Minister and may, if directed to do so by the Minister, publicise statistics produced from any such information. (6) The Authority may forward to the Legal Services Commissioner any information obtained under this clause.

10 Claims Costs Disclosure Jason Kroeger, SIRA sira.nsw.gov.au

11 Claims Costs Disclosure The Claims Costs Disclosure Process Stage 1 Stage 2 Stage 3 Stage 4 Insurer creates record Insurer sends the records to SIRA SIRA validates entry prompt to lawyer Lawyer completes intelligent form Submits to the Authority Incomplete Follow up s sent

12 Claims Costs Disclosure The view of the NSW CTP scheme prior to CCD Prior to the Claims cost disclosure project the SIRA, had no knowledge or transparency of legal costs being charged to the claimant from their legal provider. This made it impossible to ascertain to the full or total efficiency of the NSW CTP Scheme. Holistic View of the NSW CTP Scheme Prior to the Claims cost Disclosure Project Claimant Benefits

13 Claims Costs Disclosure The view of the NSW CTP scheme currently We (SIRA) have now received over 6000 cost disclosure submissions from the claimants legal representatives. Based on this data we (SIRA) now have a much more precise picture on the total scheme performance and the legal fees charged to the claimants by the claimants lawyer The Current Holistic View of the NSW CTP Scheme Post Claims cost Disclosure Inception Claimant Benefits Legal costs charged by Claimant Lawyers

14 Claims Costs Disclosure All payments are now accounted for The data provided to us (SIRA) is the missing information about specifically how much the claimant received, and what the lawyer received for managing the settlement. This information has enabled SIRA to advocate for changes to the scheme to ensure the funds provided to the claimants is spent on rehabilitation and compensation and not divided or swallowed up in legal cost.

15 Scheme Efficiency Kenneth Chua, EY

16 Scheme efficiency Impact of legal cost adjustment on scheme efficiency Scheme Efficiency: Before and After Adjustments Legal & Investigation Expenses (18%) 52% Claimant Benefits (45%) 11% 37% Other Scheme Costs (37%) The chart shows the efficiency of the scheme since 2000 before and after adjusting for the estimated total legal plaintiff cost is shown in the diagram Efficiency is a measure of how much of the premium is paid to claimants By using the results from CCD analysis, we are estimating a reduction in scheme efficiency from 52% to 45%

17 Detailed Findings Kenneth Chua, EY

18 Detailed Findings Data used Analysis was based on the CCD data extract as at 1 August 2016 (except for Law Firm Under Review which was based on CCD extract at 29 March 2016). June 2016 PIR data was used We have decided to use all the CCD data in our analysis (excluding not matched to PIR), which produces a lower result for the extent of legal costs

19 Detailed Findings Results from CCD database Legal plaintiff fees are split in the following components: Regulated costs - Legal Plaintiff payments visible in settlement negotiations and reported in the Personal Injury Registry (PIR) data received Contracted Out fees This is additional legal plaintiff payments not captured in the PIR, but disclosed in the CCD. This was previously unknown. The table below summarises our findings from the CCD analysis Cost as a % of Claim Size Contracted Out Fee % Regulated Cost Fee % Total Legal Plaintiff Fee % Total Legal & Investigation Fee % 10.4% 10.3% 20.7% 28.0%

20 Detailed Findings Breakdown of total legal plaintiff cost 9% 2% 2% 2% 4% Legal Plaintiff Cost Breakdown Solicitor fees inc party/party Barrister/counsel fees Medico-legal specialist reports including allied health Majority of the costs goes to solicitor fees, with the % of claim cost increasing as claim size decrease. This trend is also apparent for Medico-legal specialist reports 13% Other e.g. interpreter, travel etc. 69% Other expert fees paid Attending GP, specialist reports and clinical notes including allied health Previous lawyers' fees Barrister/counsel fees is the second largest cost, with the % of claim cost increasing as claim size increase.

21 % of claim size The real plaintiff lawyer Detailed Findings Legal plaintiff cost by claim size band Total Legal Fee by Claim Size Bands 40% 35% 30% 25% 20% 15% 10% 5% 0% < $50k $50k - $100k $100k - $200k $200k - $500k $500k - $700k $700k - $1M > $1M Claim Size Bands Total Legal Plaintiff Fee as a % of Claim Size

22 Detailed Findings Legal cost by injury severity and WPI The table below shows how legal costs vary by: Injury severity Whole person impairment (WPI) based on modified AMA 4 Cost as a % of Claim Size Injury Severity, WPI threshold Total Legal Plaintiff Costs % Legal Defendant Costs % Investigation % Minor, WPI <=10% 29% 8% 2% Moderate/Serious, WPI <=10% 24% 7% 2% Minor, WPI >10% 16% 4% 1% Moderate/Serious, WPI >10% 14% 5% 1%

23 Detailed Findings CCD extract Law firms under review Law firms exhibiting high interaction factors with some medical service providers were selected and analysed separately to rest of the law firms The table below is extracted from the CCD, which outlines the difference between the law firms under review and other law firms Cost as a % of Claim Size Law Firms Proportion by Claim Count "Contracted Out" Fee % PIR Regulated Cost Fee % Total Legal (Plaintiff) Fee % Law Firms under review 20% 16% 14% 31% Other Law Firms 80% 10% 10% 20% Of all total, law firms under review make up 20% of claim count (9% of total payments). Majority of the for them are minor severity (85% by claim count), while other law firms have 65% of claim count that are minor severity The number of handled by these law firms has approximately tripled over the period of 2011 to 2015

24 Further developments Kenneth Chua, EY

25 Future developments Future development and uses for the CCD In the NSW CTP scheme: Monitoring of efficiency in the scheme Identifying areas for investigation Legal cost regulation reviews For other personal injury schemes: Raise awareness of the full extent of legal costs A roadmap for implementation of a similar arrangement

26 Q & A Jason Kroeger, SIRA & Kenneth Chua, EY

27 This presentation may contain information that relates to the regulation of workers compensation insurance, motor accident third party (CTP) insurance and home building compensation in NSW. It may include details of some of your obligations under the various schemes that the State Insurance Regulatory Authority (SIRA) administers. However to ensure you comply with your legal obligations you must refer to the appropriate legislation as currently in force. Up to date legislation can be found at the NSW Legislation website legislation.nsw.gov.au. This presentation does not represent a comprehensive statement of the law as it applies to particular problems or to individuals, or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation. This material may be displayed, printed and reproduced without amendment for personal, in-house or non-commercial use.