Archive for the ‘Insurance’ Category
Wednesday, February 22nd, 2012
In the first case of its kind in the High Court, a judge has granted permission for proceedings to be served by Facebook.
The case concerns a claim against a former employee of a firm of brokers alleged to have overcharged commission to clients. Proceedings were served at his last known address but not knowing if he still lived there, permission was also sought to do so via Facebook. The court heard evidence that the employee was known to access his Facebook account and so granted permission for service by this alternative method.
The Court has power under CPR Part 6 to grant permission to serve within the jurisdiction by an alternative method “where there is good reason” (PD6.15).
This will undoubtedly open the doors to similar applications being made to serve proceedings via social networks on missing defendants at all levels of the courts. It begs the question however, how do you enforce against someone who exists only in the virtual world?
Posted by Steven Conway, specialising in: defence of claims on behalf ofinsurers, local and public authorities, in particular employers’ and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (2 votes cast)
Tags: AKO Capital LLP, AKO Master Fund, Civil Procedure, Fabio de Biase, Facebook, High Court, litigation, service of legal proceedings, steven conway, TFS Derivatives
Posted in Employers & Public Liability, Insurance, Litigation, Uncategorized | No Comments »
Tuesday, February 21st, 2012
The UK Government has launched a public consultation which has confirmed its intention to abolish distress for rent (recovery of arrears of rent by seizure of the tenant’s goods) and replace it with a modern regime to recover commercial rent arrears. This is good news for tenants who see the current archaic law as unfair and open to abuse. Conversely, this may not be good news for landlords who make use of the self help remedy.
Either way there has to be a question mark over the political will to make this change. The legislation implementing these changes has been delayed since 2007 and the government’s response on this further consultation is not due until October of this year.
Posted by Kate Andrews, who specialises in: advisory and dispute resolution relating to contentious property litigation; landlord and tenant disputes, contractual and development disputes, also property insolvency and rights of light issues.
Kate Andrews
0207 337 1024
kandrews@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (2 votes cast)
Tags: commercial rent, distress for rent, government, insolvency, Kate Andrews, landlords, property litigation, rent arrears
Posted in Commercial dispute resolution, Insurance, Property | No Comments »
Thursday, February 16th, 2012
David Cameron has this week hosted a summit of motor insurers to address the high level of whiplash claims in the UK. Among proposals are banning referral fees, a presumption against whiplash in RTAs under a minimum speed and a requirement for additional expert evidence.
Whiplash claims in the UK have increased despite reductions in RTA casualties, with rates higher than in many other countries. The ABI calculates this adds £90 to the average motor premium, and a substantial industry has developed to take advantage of the costs recovered.
Action is needed, but additional evidence or a referral fee ban without measures to control costs risk enhancing claims industry profitability, preserving the incentive to maximise claims.
A comprehensive fixed costs scheme for lower value claims, with costs at an appropriate level and an increase in the small claims limit for injury claims appears the most promising response. However, the Government has proved slow to progress reform in these areas.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: ABI, Claims, David Cameron, RTA, whiplash claims
Posted in Insurance | No Comments »
Thursday, February 9th, 2012
The Ministry of Justice has finally announced its proposals following its County Court consultation last year.
The Small Claims limit goes up to £10,000. There will be mandatory mediation sessions in the Small Claims Court. The portal limit for RTA claims will be extended to £25,000 with possible extension to EL and PL claims following further consultation. The fast track limit will remain the same. The government has abandoned mandatory mediation information sessions and pre actions directions – this is good news as the proposals would only have introduced a further layer of costs!
The government says it wishes to consult further on the question of fixed costs so that they can be extended and in particular to higher value personal injury claims. It will also look at pre-action protocols to see if these can be improved. So two years on, we are still debating the issues. What we need most is certainty and clarity. The sooner this debate comes to an end the better!
Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
020 7337 1019
nevans@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: county court consultations, EL Claims, insurance claims, mediation, Ministry of Justice, personal injury, PL Claims, pre-action protocol, RTA Claims
Posted in Insurance, Professional Indemnity | No Comments »
Tuesday, February 7th, 2012
The Court of Appeal has reviewed the law on vicarious liability in the co-joined appeals in Weddall v Barchester Healthcare Limited and Wallbank v Wallbank Fox Designs Limited where employees suffered injury at work as a result of violence by another employee.
In reviewing the authorities on the concept of vicarious liability the court maintained that it would be unwise to treat these providing an authoritative test stating that each case must be determined on its own facts.
In doing so the court found the assault in Weddal was “separate and distinct” and “outside the course of employment” whilst in Wallbank they concluded it was “so closely connected, in time, place and causation”, being an “immediate response to instructions” that it was fair and just to hold they employer vicariously liable.
Despite concerns that the concept of vicarious liability was being incrementally extended, it is reassuring the Court of Appeal has reasserted the need for the courts to maintain a tight rein keeping the concept within clear limits.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 7.4/10 (7 votes cast)
Tags: assault at work, Court of Appeal, employers liability, insurance, steven conway, strict liability, vicarious liability
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Wednesday, January 25th, 2012
The Law Society and the Solicitors’ Regulation Authority (SRA) have been given permission to intervene in Godiva Mortgage Limited v Travelers Insurance Company Limited. The issue is the extent to which insurers’ liability to cover multiple claims against a solicitors’ practice may be limited by aggregating them as one claim.
The current position which appears to allow large numbers of claims to be aggregated was arrived at after a decision by the SRA to shift the goal posts in favour of the insurers by altering the aggregation clause in the Minimum Terms and Conditions in 2005. It is now obviously felt that the Insured solicitors, their clients (and in cases of dishonesty, the Solicitors’ Compensation Fund) are insufficiently protected.
Further clarity on the wording is needed to allow underwriters to assess accurately the risks and fix premiums. This may result in solicitors (and other professionals) insisting on certain wordings in their primary policies, driven in all likelihood by their clients, especially mortgage lenders.
Posted by Jim Hobsley, who specialises in professional indemnity claims involving a wide range of professionals including accountants, surveyors, solicitors and barristers; experienced in policy coverage disputes.
Jim Hobsley
0207 337 1011
jhobsley@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: insurance, law society, liability, mortgage lenders, professional indemnity, public liability claims, solicitors regulation authority
Posted in Insurance, Professional Indemnity | No Comments »
Friday, January 20th, 2012
This week brings news that four siblings received nearly £1m from Essex Council. Their claims were based on alleged failings on the part of Essex social workers. The detail of each claim is confidential but they do reflect a change in the quantum of damages that claimants are expecting in abuse cases (and a corresponding increase in costs).
Even 5 years ago claimants proving prolonged and very serious sexual abuse over a number of years were recovering a maximum of £50,000 General Damages. More minor and isolated incidents might attract as little at £5,000. Special Damages claims were also relatively modest, with Claims of Therapy of £7,500 on average, and future loss of employment capacity usually calculated on a Smith -v- Manchester basis at between £10,000 and £20,000.
These days the effect of cases like this, and claimants’ increased use of CFAs means we are often reserving even modest claims at £100,000.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.0/10 (3 votes cast)
Tags: cfa, child abuse, childrens social care, claims of therapy, essex council, insurance, Social Care, social workers
Posted in Insurance, Social Care | No Comments »
Thursday, January 12th, 2012
Days after Cameron launches an attack on the compensation culture the Transport Select Committee has recommended changes to the law to reduce the rising costs of whiplash injury claims.
The Committee reports there has been a 70% rise in motor insurance injury claims in the past six years, despite a 23% drop in the number of RTA casualties.
It recommends an increase in the threshold for receiving damages in whiplash cases and if this fails to reduce the number of claims significantly, the government should bring forward primary legislation to require objective evidence of whiplash injury and it having a significant effect on the claimant’s life, before compensation is paid.
Anyone who has been involved in a road traffic accident or who deals with these claims will be aware of the huge industry that now surrounds even the most minor accident. It is time for a change.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.3/10 (7 votes cast)
Tags: Browne Jacobson LLP, compensation claims, compensation culture, insurance, litigation, motor, motor insurance fraud, personal injury, road traffic accidents, road traffic claims, steven conway, whiplash claims
Posted in Insurance, Litigation | 1 Comment »
Friday, January 6th, 2012
David Cameron has vowed to protect British businesses by “waging war” on the health and safety culture inflicting the UK.
With many depicting a double dip recession on the horizon Cameron argues businesses need some respite from the “battle against a tide of risk assessment forms and fear of being sued for massive sums”.
Many believe there is almost strict liability for employers’ liability claims which makes even accidents where there is no fault on the part of the employer virtually impossible to defend.
Cameron intends to abolish or consolidate up to half of the existing health and safety regulations and to change laws so that businesses are no longer automatically at fault if something goes wrong.
Whilst we await the Prime Ministers detailed proposals his call for individuals to take “responsibility for our actions and rely on common sense” will be welcomed by all those who have felt that the scales had tipped too far in favour of the careless, feckless and work-shy.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.8/10 (6 votes cast)
Tags: compensation culture, David Cameron, employers liability, health and safety, insurance, steven conway, strict liability
Posted in Employers & Public Liability, Health & Safety, Insurance, Litigation | No Comments »
Tuesday, January 3rd, 2012
The latest version of Well-maintained Highways: the Code of Practice for Highway Maintenance Management has been released which includes updated chapter 13 providing guidance on Winter Service.
This revision is a consolidation of all previous UK Roads Liaison Group winter guidance documents and includes new detailed information on the scope and detail recommended for local authority winter maintenance policies. Local authorities would be well advised to note these to ensure they comply with their duty under section 41(1A) of the Highways Act 1980 as we head in to the winter weather season.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (5 votes cast)
Tags: browne jacobson, codes of practice for higways maintenance management, insurance, litigation, local authority winter maintenance, section 41(1A) of the Highways Act 1980, steven conway, uk roads liaison group, well maintained highways, winter service
Posted in Insurance, Litigation, Local Authorities | No Comments »
Friday, December 16th, 2011
Just in time to put a downer on the Christmas spirit the Court of Appeal has held that it was the responsibility of Father Christmas to keep his grotto clean and tidy and that he was responsible for an elderly lady tripping on a plastic icicle while she visited his grotto.
Joan Dufosse, 73, was having a photograph taken with her two grandchildren at Selfridges in Oxford Street store when she trod on the icicle and fell, fracturing her left thigh. Lord Justice Rix held that Mrs Dufosse was in no way to blame for falling, stating that “It was not her duty to ensure there were no tripping hazards in the room which might cause something amiss. This was purely the duty of Santa and the elf.”
Mrs Dufosse is now in line for a £30,000 payout as elves now fear for their jobs in cuts expected as a result of Santa having to meet this compensation claim.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.4/10 (7 votes cast)
Tags: compensation claim, Court of Appeal, lord justice rix, mrs dufosse, public liability, santa, selfridges, steven conway
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Wednesday, December 14th, 2011
The scale of the challenge facing Government plans to reduce the claims culture is becoming increasingly clear as the Legal Aid Sentencing and Punishment of Offenders Bill progresses through parliament.
Within the Lords, amendments have been proposed, which would have the effect of taking the teeth out of the CFA and ATE provisions. These include allowing unions to continue funding claims on the current basis and potentially unachievable obligations on the Lord Chancellor to be satisfied before the provisions come into effect.
At the same time, businesses affected by the Act are beginning to announce their plans to use alternative business structures (ABS) to circumvent a referral fees ban. The latest reports relate to Admiral insurance, but it is likely that many others are weighing their options.
These moves are not unexpected. The question now is whether industry’s ability to outmanoeuvre the Bill, coupled with sufficiently coordinated opposition in the Lords will force a Government re-think.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 5.5/10 (2 votes cast)
Tags: admiral, alternative business structures, ate, cfa, insurance, legal aid sentencing, punishment of offenders bill
Posted in Insurance | No Comments »
Friday, November 25th, 2011
The case of Fortune v Roe has re-visited the question of success fees and what the correct success fee ought to be if certain risks are removed from the litigation.
In this case the Claimant had been involved in a very serious car accident but by the time she entered into a CFA liability had been admitted and judgment entered for damages to be assessed. The CFA provided for a success fee of 100%. Sir Robert Nelson found that there was no risk to the recovery of charges to the solicitor and there could not be said to be a litigation risk. Therefore the only risk was of receiving no costs after beating a Part 36 offer and the success fee would represent compensation for that. As a result the court found that a success fee of 100% could not be justified and the figure of 20%, awarded by the first instance judge was upheld.
This shows the importance of getting the risk assessment on the CFA right. If it’s not an accurate assessment then we can expect the courts to get involved – with cost consequences!
Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
020 7337 1019
nevans@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: cfa, insurance, litigation, litigation costs, Part 36, professional indemnity, risk assessments, success fees
Posted in Insurance, Litigation, Professional Indemnity | No Comments »
Friday, November 11th, 2011
The High Court has put a stop to Before the Event (“BTE”) insurers’ practice of refusing to pay for a policyholder’s own choice of solicitor unless they sign up to ultra-low ‘panel’ rates.
In Webster Dixon v Equity Syndicate, the court ruled that the practice of BTE insurers seeking to impose their rates on policyholders’ solicitors breached European regulations designed to protect policyholders’ freedom to choose their own lawyers. The court held that this widespread practice watered down a policyholder’s choice as their preferred lawyer may refuse to accept the low rates that BTE insurers insist upon.
Many groups have hailed the decision as a victory for access to justice, although there is a fear in some camps that it will only serve to increase premiums, making them unaffordable for many, thereby having the opposite effect.
Only time will tell what the long-term effect of this decision will be, although we may be in for a long wait, with many commentators predicting an appeal.
Posted by Tim Johnson, who specialises in professional indemnity claims; defending professionals in the property, legal, financial services and IT sectors; also advises in relation to insurance coverage disputes.
Tim Johnson
0115 976 6557
tjohnson@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: before the event, bte insurers, webster dixon v equity syndicate
Posted in Insurance | No Comments »
Wednesday, October 26th, 2011
Kenneth Clarke today (26 October) set out his proposals for a ban on referral fees in the form of draft amendments to the Legal Aid Sentencing and Punishment of Offenders bill.
Clarke’s solution excludes the creation of a criminal offence but instead relies on regulation enforced by the FSA, Claims Management Regulator, Law Society and Bar Council. Rather than setting out a comprehensive regime, Clarke relies on powers to create secondary legislation and regulatory rules to bring the ban into effect.
The initial ban would be confined to claims relating to injury or death, with the Lord Chancellor empowered to extend the categories. An exception is included for payments in relation to services (eg advertising) but the Lord Chancellor may limit the sums payable to control this potential loophole.
The proposals set out by Clarke are a measured response to referral fees which, in light of the cross- party support for a ban, should have good prospects of surviving the remaining stages of this bill’s passage.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: claims management regulator, FSA, insurance, Kenneth Clarke, law society, legal aid, punishment of offenders, referral fees, regulatory rules
Posted in Insurance, Regulatory | No Comments »
Thursday, October 20th, 2011
Andy Slaughter, the Shadow Justice Secretary, yesterday put forward his proposals to abolish referral fees, as amendments to the Legal Aid, Sentencing and Punishment of Offenders bill. These include:
- criminalising referral fee arrangements, though only in relation to road traffic claims
- a criminal offence of sending electronic communications or making telephone calls to induce a person to make an injury claim
- no damages for whiplash arising from road traffic accidents with an impact speed less that 5 mph, unless the Claimant has a particular susceptibility to injury
- additional regulation of cold calling and of claims management companies by the Information Commissioner and Legal Services Ombudsman
This mirrors Jack Straw’s Motor Insurance Regulation Bill, and runs into the same difficulties. Effective enforcement of the criminal aspects will be difficult, given the Claims Management Regulator’s past experiences and the high standard of criminal proof. The whiplash proposals will give rise to evidential issues over impact speeds and vulnerability.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: andy slaughter, information commissioner, legal aid, legal services ombudsman, motor insurance regulation bill, referral fees, road traffic claims, shadow justice secretary
Posted in Insurance, Regulatory | No Comments »
Wednesday, October 19th, 2011
In a warning to those who seek to help claimants exaggerate claims, two relatives of a claimant in a personal injury claim have been held to be in contempt of court for deliberately creating a false impression that she suffered from very limited mobility in an attempt to inflate her claim.
Thereza Daoud suffered serious head injuries when she was hit by a bus and presented a claim for personal injury for several million pounds. The defendants obtained video surveillance which showed she was presenting a “deliberately false picture” to the defendant’s medical experts which resulted in her claim being settled for only £40,000.
Proceedings for contempt of court were brought against her husband two daughters with the High Court finding that the husband and one daughter had signed false statements of truth and deliberately given a false impression to the experts. A further hearing will be held to determine what sanction should be applied.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (6 votes cast)
Tags: contempt of court, exaggerated claim, fraud, insurance fraud, motor insurance fraud, road traffic accidents, steven conway
Posted in Insurance, Litigation | No Comments »
Tuesday, October 11th, 2011
The Government Actuary’s Department has just (10 October 2011) published the 7th edition of the Ogden tables. This is seen as an interim step towards a more substantially revised 8th edition, expected in Autumn 2012.
The update reflects changed mortality predictions published since the 6th edition and includes minor clarifications to the accompanying guidance, including an amendment to the definition of ‘disabled’.
Across the board, the tables show an average increase of around 4.5% at a discount rate of 2.5%, though the most substantial increases lie in the pensions tables so that the impact on claim reserves will be less.
A more substantial change would result from a change to the discount rate which is currently under review by the Lord Chancellor.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: Actuary Department, browne jacobson, insurance, james arrowsmith, Mortality predictions, ogden tables pensions
Posted in Insurance, Pensions | No Comments »
Tuesday, October 11th, 2011
A senior Scotland Yard officer has warned motorists to beware of “cash for crash” insurance scams following the sentencing of six men charged with insurance fraud following three induced road traffic accidents totalling over £50,000.
Only one of those charged received a custodial sentence, jailed for 8 months after admitting conspiring to defraud insurance companies, while the remaining five received suspended sentences having admitted committing similar offences.
Contrast these sentences with those handed out in the recent riots where one rioter was jailed for six months for stealing a £3.50 case of water from a supermarket while another was jailed for five months for receiving a pair of shorts given to her after they had been looted from a city centre store.
Judges criticised for the apparent harshness of sentences given to rioters were defended on the basis that the sentences handed down had a deterrent effect. Perhaps the time has come for the courts to take a similar approach to insurance fraud, or else continue to be seen as a soft touch.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ liability and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (10 votes cast)
Tags: browne jacobson, Cash for crash, fraud, induced traffic accidents, insurance, insurance fraud, insurance scam, litigation, motor, motor insurance fraud, planned traffic accidents, steven conway
Posted in Insurance, Litigation | No Comments »
Friday, September 30th, 2011
Hot on the heels of yesterday’s announcement (29 September 2011) that only 60 babies were adopted last year, comes the news that the number of children in care in England has increased to 65,520.
Monitoring these placements is not easy, it involves social workers working with multidisciplinary teams and families to try and work out what is best for each child. We are seeing an increasing number of claims arising out of such placements (and indeed failure to make such placements). To defend each claim we have to read lots of paper and electronic documents. We also need to spend valuable hours with practitioners so that we can explain what Social Work Practice means on the ground, and why decision making is not simple. The amount of time this involves is breathtaking yet quite often the value of the claim relatively low.
Sadly my view is that Social Workers may, like health professionals, have to become used to the idea that giving evidence in professional negligence claims is simply part of the job. Employers can make that change of culture easier by providing regular training and support.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: browne jacobson, child protection, children in care, Claims, local authorities, professional negligence, professional negligence claims, Public Sector, safeguarding, sarah erwin-jones, Social Care, social work practice, training social workers
Posted in Professional Indemnity, Public Sector, Social Care | No Comments »
