Quarterly Update Spring 2017 Deborah Evans & Neil Sugarman 20 th March 2017 Winter update - line-up The Whiplash Reforms The Jackson reforms to introduce fixed fees in cases worth up to 250,000 Clinical negligence Noise Induced Hearing Loss Courts reform 1
5000 Personal injury resulting from a road traffic accident 2000 Other personal injury 1000 Clinical negligence? Small claims limit 5000 for road traffic accidents Whiplash injuries 0 24 months tariff Some broken bones } Facial scarring } no tariff Dislocated thumb } 2
2000 for other personal injury claims Dermatitis Trips and slips Male facial scarring Thumb injuries MedCo Role to be expanded Who will fund reports? Insurers? Pre-med offers banned for whiplash Sticking with PROGNOSIS model 3
Whiplash tariff Whiplash tariff Almost without exception below the minimum amount in the Judicial College Guidelines Whiplash claims where the injuries last in excess of 24 months will be in the fast track assuming the client has done what s necessary to recover quickly Rehab 4
Whiplash + If more than one injury, damages are based on the combined effect The process No detail How will liability denied claims to be handled? Mechanism for access for vulnerable users? Purely digital 5
Claims management companies More proposals to follow Concerns noted and agree need to control No ban on cold calls Rehab Claimants should seek rehab if needed No detail as to how or where 6
Minor psychological injury Included in the tariff No separate payment or additional figure Judicial discretion An uplift of 20% can be awarded where The defendant has wrongly alleged fraud The defendant defended liability in a justified case The claimant is a sportsperson etc. 7
Discount rate 7 December 2016 - Lord Chancellor announces intention to review discount rate by end of January 2017 20 December 2016 ABI serves JR proceedings on Lord Chancellor, challenging her decision to review the rate. January 2017 ABI s JR of the Lord Chancellor s decision to announce the result of the discount rate review failed on appeal, along with its application for interim relief. Discount rate 27 January - Lord Chancellor s decision to announce to the London Stock Exchange) that she would not be making her announcement, as promised, on 31 January 2017. Instead she would do so in February. 27 February Lord Chancellor announces that the discount rate would change from 2.5% to -0.75% from 20 March 2017. She also announced that there would be a further consultation, due before Easter, on whether the way in which the discount rate is currently calculated is correct. 8
Discount rate ABI reacted with fury to such an extent that even one of their own members, ARAG was embarrassed. March 2017 - APIL meeting with MoJ officials questions about what we think should be in the consultation reiterate our view that the current method of calculation is correct the cautious investor as per Wells v Wells and the rate set based on returns from ILGS. Jackson proposal on fixed recoverable costs November 2016 announcement 9
Jackson proposal on fixed recoverable costs Terms of reference To develop proposals for extending the present civil fixed recoverable costs regime in East and West so as to make the costs of going to court more certain, transparent and proportionate for litigants Jackson proposal on fixed recoverable costs To consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply To report to the Lord Chief Justice and the Master of the Rolls by 31 st July 2017 Invited written submissions 10
APIL submitted response General principles why PI is different MT PI cases are diverse and complex Fixed costs only work where process is fixed Concerned about fixing costs for cases over 25,000 breadth of issues involved 3.4% of all PI cases fall in 25,000 to 250,000 bracket Focus on injured person Focus should be on efficiencies in process and procedure Serious Injury Guide defines a process that meets the reasonable needs of the injured person Parties work together to resolve case Reduces costs and issues in the case as parties are agreeing steps in every case 11
Benefits Resolve liability Commit to early interim payments Access to rehabilitation Prompt disclosure Resolve matters outside of proceedings Civil Procedure Rules Committee endorse it Jackson seminars Manchester focus on PI and CN Vice president spoke on behalf of APIL Presentations also from NHSLA / FOIL / PIBA 12
Jackson seminars Further seminar in London discussing the threshold for fixed costs, experts fees and counsels fees APIL members have assisted with data collection exercise at request of Professor Fenn Clinical negligence cases over 25,000 Disease claims up to 25,000 PI (including disease) over 25,000 Good response from APIL members 13
Next steps Jackson assessors working through submissions Jackson speaking at APIL conference Due to report by 31 st July 2017 Clinical negligence APIL working group met at the end of February Little within the proposals for injured people If DoH is intent on fixed costs must be a fixed process with incentives to settle 14
Clinical negligence Real concerns that paper refers to the same fixed costs for fast track and multi track cases Need to ensure there is plenty of notice for any implementation Clinical negligence Concerns about decimation of junior bar in clinical negligence work Exemptions listed are not sufficient Further debate is needed 15
Northern Ireland Review group draft report on civil justice APIL welcomes many of the recommendations arising from Lord Justice Gillen s draft report on his review of civil justice. APIL s suggested amendments to the personal injury pre-action protocol have been taken onboard by Lord Justice Gillen. APIL warns that these amendments should not be contingent on the county court jurisdictional limit being raised to 75,000, however. Northern Ireland Introducing a statutory registration scheme for providers of publicly funded legal services APIL is responding to a Department of Justice consultation on the introduction of a statutory registration scheme for providers of publicly funded legal services. Solicitors firms who provide publicly funded legal services in Northern Ireland will be required to sign up to a code of practice, commit to a minimum standard of service delivery and record keeping, and will have to certify they are compliant with conditions for registration. The consultation also asks for views on the how fees should be calculated, to cover the costs of the scheme. 16
Scotland Draft Fatal Accident Inquiry Rules APIL has responded to the Scottish Civil Justice Council s proposed rules on fatal accident inquiries While the aims of the rules should be welcomed, we are concerned that the time frames set out are unrealistic, and will result in inquiries being ineffective. Preliminary hearings should be much more general than currently proposed, to ensure that they are workable. Scotland APIL welcomes the provision for greater judicial continuity, and suggests that there should be greater specialism, with a certain number of sheriffs dealing only with fatal accident inquiries. APIL s response is available on our website. 17
Ministry of Defence consultation on Better Combat Compensation To provide better and faster compensation to soldiers, the Ministry of Defence has proposed to enshrine the principle of combat immunity in legislation. Those prevented from pursuing a negligence claim because of combat immunity will, according to the MoD s consultation, be awarded an amount of compensation akin to that which they would have been awarded if their case had been decided in court. While APIL welcomes enhanced compensation for those barred from pursuing a negligence claim by combat immunity, we are concerned that the MoD s proposals widen the scope of combat immunity beyond those decisions made in the heat of battle, to those involving equipment and training, and will mean that soldiers will be denied their right to be heard. The MoD will escape the scrutiny of the courts, will not be held accountable for mistakes, and lessons will not be learned. APIL s response is available on our website. 18
DfT consultation on amending the Road Traffic Act in line with Vnuk APIL has responded to a Department for Transport consultation on amending the Road Traffic Act following the Court of Justice of the European Union case of Vnuk. APIL welcomes that the UK Government (however reluctantly) accepts that the Road Traffic Act cannot be maintained as it stands. We believe that the Road Traffic Act should be amended to bring it fully in line with the Motor Insurance Directive, and the consultation is a step towards this. APIL believes that Vnuk was decided correctly, and that the Road Traffic Act should be brought fully in line with the wider reading of the Motor Insurance Directive, requiring compulsory third party motor insurance when a vehicle is used in a way consistent with its normal function. The Government could avoid any overly onerous consequences by using powers under Article 5 of the Directive to exempt certain categories of vehicle from the compulsory requirement. APIL warns that the factors to consider when deciding whether to exempt vehicles from the requirement must be chosen carefully. 19
DoH proposals for a rapid redress scheme for severe birth injuries APIL is responding to Department of Health proposals to introduce a rapid resolution and redress scheme for severe avoidable birth injuries, as an alternative to the litigation process. The scheme would be voluntary, according to the DoH, with families still able to choose to bring a negligence claim should they wish to. The DoH hopes the scheme will encourage a learning culture and reduce the number of severe avoidable injuries, as well as improving the experience of families and clinicians when harm has occurred. There would be two stages to the scheme: An independent investigation of potentially avoidable instances of neurological birth injury. A panel of independent experts will then decide whether the incident is eligible for stage two. 20
If eligible, families will be provided with counselling and support to access state services. If required, access to legal advice will be available to help families understand the options available to them. A compensation package will be provided, which the DoH suggests will amount to 90% of the compensation that would have been awarded in court. The consultation closes on 26 May. Data APIL has been looking at building closer links with firms to enable the provision of data. Members have told us that they would prefer to provide data at the point of file closure. In response, we have developed a claim closing form. Members will be asked to complete this form every time they close a claim. It is hoped this form will allow members to regularly provide data to APIL in a time efficient manner. 21
Data If you can do this every time you close a claim, we will be able to back up our policy positions with data. The ABI already collects data from their members on a routine basis, which allows them to respond to issues as they arise. We need to strengthen our arguments by doing the same. Data The form can be accessed at https://www.surveymonkey.co.uk/r/apilclaimclosingform. Please contact john.mcglade@apil.org.uk if you have any suggestions about how this form can be made more user friendly. We remain interested in utilising data recorded in members case management systems. If your firm uses a case management system to routinely record and extract data, APIL s policy research officer, John McGlade, would be interested in talking to you. 22
In the media Since the last update APIL content has been printed in over 100 different publications, including: A press release issued after the response to the small claims reforms was submitted was published online on the Law Society Gazette, Solicitors Journal, Legal Futures, Claims Magazine, Insurance Post and Insurance Times websites. After learning that the Prisons and Courts Bill was imminent, APIL sent out a press release which was used by Claims Magazine, Law Society Gazette, Legal Futures, Insurance Post and Solicitors Journal. A letter was sent to regional newspapers highlighting how taxpayers sometime have to pick up the bill for shortfalls in compensation, due to the excessively high discount rate. This letter reached a print circulation of 549,849. 23
At the end of February the Lord Chancellor announced the new discount rate. APIL issued a press statement the same morning and part or all of this statement was used in 45 news stories (both online and in print). A comment piece by Neil Sugarman explaining that the discount rate is about compensation and not legal fees was printed on the law pages on The Times (circulation of 451,261) After the announcement of the new discount rate, Neil Sugarman was interviewed for two BBC news television programmes and took part in an interview alongside Huw Evans from the ABI for Sky News. Radio covering includes a pre-recorded interview on BBC Radio 5 live and a live interview on BBC Radio 4 s Money box programme. 24
@APIL APIL now has over 7,000 followers on Twitter Since the last update APIL has tweeted 222 times, these tweets have been retweeted 2,500 times Most retweeted tweet to date: 111 retweets 90 likes Potential reach of 92,763 Parliamentary update - lobbying Small claims/whiplash: APIL president Neil Sugarman appeared in front of the House of Commons Justice Select Committee to answer questions on the reforms during a oneoff session. APIL has met with Labour, Conservative and Plaid Cymru MPs to discuss the Government s small claims and whiplash reforms. Almost 100 APIL members have written to their MPs to oppose the proposals. Government s whiplash reforms included as part of the Prisons and Courts Bill to be debated by MPs on Monday 20 March. Updated parliamentary briefing circulated to MPs ahead of the debate. 25
Annual conference Special addresses from The Lord Keen of Elie QC and The Right Honourable Sir Rupert Jackson Brand new session: 'Fairness to injured people: the new discount rate consequences, pitfalls and how to future-proof your clients damages' Thursday, 18 - Friday, 19 May The Celtic Manor Resort, Newport, South Wales 26