Archive for the ‘Insurance’ Category
Thursday, May 17th, 2012
An audit managed by the NHS’s Health and Social Care Information Centre and Diabetes UK has revealed that nearly one in three hospital patients with diabetes are affected by medication mistakes. Hospitals in England and Wales were shown to have made at least one error in the treatment of 3,700 patients with diabetes during one week. Two thirds of these patients were admitted for reasons other than diabetes.
During the audit itself 68 patients developed diabetic ketoacidosis, which can be fatal if left untreated. Those patients who received incorrect doses of medication were shown to have suffered more than double the number of severe hypoglycaemic episodes than those correctly treated.
At Browne Jacobson we have been involved in cases where there have been medication errors in the management of diabetes and the results of this audit clearly highlight the importance of clinicians taking a multidisciplinary approach to diabetes management for patients in an acute setting.
Posted by Simon Tait, who specialises in high value clinical negligence claims; risk management, record disclosure, inquests, in-house litigation protocols and consent to treatment issues.
Simon Tait
0115 976 6559
stait@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: browne jacobson, clinical negligence, Diabetes UK, medical negligence, Simon Tait, Social Care Information Centre
Posted in Insurance, Insurance - Advisory, Litigation | No Comments »
Wednesday, May 2nd, 2012
The Legal Aid Sentencing and Punishment of Offenders Bill received Royal Assent on 1 May. Though provisions on legal aid have received the most attention during its passage through Parliament, the part dealing with civil litigation funding sets the stage for sweeping reforms expected in April 2013.
Headline measures are a ban on referral fees together with the ending of recovery of success fees and ATE premiums.
Despite frantic lobbying by some interest groups, Jackson’s proposals for reform of litigation funding have remained largely intact. A Government ‘climb-down’ which has resulted in the exclusion of mesotherlioma cases from the reforms affects a limited proportion of claims.
Reassurances given by the Government, in relation to the operation of QOCS for example, will be tested when the draft rules bringing the scheme into effect are published.
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
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Rating: 0.0/10 (0 votes cast)
Tags: jackson, legal aid sentencing and punishment of offenders bill, litigation, mesothelioma
Posted in Insurance | No Comments »
Thursday, March 29th, 2012
The Lord Chancellor has reported to Parliament on the progress, or, more accurately, the lack of progress, towards implementation of the Third Parties (Rights Against Insurers) Act 2010.
When implemented, the Act will make it easier for a person with a claim against an insolvent but insured wrongdoer to claim against the wrongdoer’s insurer. It will allow the claimant to proceed against the insurer directly without first establishing the liability of the insolvent person. The question of liability can be tested in proceedings against the insurer.
Implementation of the Act has apparently been delayed by work “on other priorities”. Additionally, the Lord Chancellor reported that some rules of court will need to be amended before it comes into force; the Act requires an amendment to cover all forms of administration; and that it should be extended to the newly introduced Debt Relief Orders in Northern Ireland.
In view of this it is unlikely that the Act will come into force until 2013.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Debt relief orders in Northern Ireland, Lord Chancellor, parliament, Rights against insurers act 2010, Third Parties Act
Posted in Insurance | No Comments »
Wednesday, March 28th, 2012
The Supreme Court has ruled that insurers on risk at the time of exposure to asbestos are liable to pay out on their employer’s liability (EL) policies.
Insurers in run-off or provisional liquidation argued their specific EL contract wording meant that the policy in force at the time of exposure should not respond; it should be the policy in force at the time the disease begins to manifest, which could be decades after the exposure to asbestos.
The judgment confirms that injuries or diseases are “sustained” or “contracted” when the process leading to mesothelioma and death is initiated by the wrongful exposure to asbestos which causes or contributes to the disease and that the insurer on cover when the claimant was exposed to asbestos will be required to pay the claim, rather than the insurer on cover when the mesothelioma develops.
The decision has finally bought certainty to this long running issue.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 8.2/10 (6 votes cast)
Tags: asbestos, asbestos claims, employers and public liability, insurance, mesothelioma, steven conway, Supreme Court, trigger litigation
Posted in Employers & Public Liability, Insurance, Litigation | No Comments »
Wednesday, March 21st, 2012
Continuing the theme of the Courts believing individuals need not take responsibility for their own actions, we have the case of Pinchbeck v Craggy Island Ltd where the claimant, an insurance loss adjuster, suffered injury after jumping a short distance off a climbing wall at an indoor climbing centre while taking part in a team-building exercise.
Finding Craggy Island two-thirds responsible for the accident, the Judge found: “They were in breach of their own procedures and standards in failing to brief or warn her properly about jumping onto the crash mat”. The claimant was found to be one-third responsible because “she could have attempted to climb down or ask for help”.
Surely individuals have a duty to take care of their own safety. I would have thought that the risk of injury from jumping off a wall was fairly obvious, so obvious in fact that there should be no need to warn of the risk of injury. Perhaps the fact she fell in to cotton wool was lost on the Judge.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
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Rating: 9.8/10 (4 votes cast)
Tags: accident, Browne Jacobson LLP, climbing wall, compensation claim, Pinchbeck v Craggy Island, public liability, steven conway, team-building
Posted in Insurance, Litigation | No Comments »
Wednesday, March 21st, 2012
Browne Jacobson yesterday submitted its response to the Law Commission consultation in relation to post contract duties of insurers and their policyholders. The paper is part of an ongoing program of reform of insurance law.
It proposes reforms which would allow policyholders to recover damages for unjustified delays in payments under a policy as well as changes to the effect of policyholder fraud. It also examines the established principle that an ‘insurable interest’ is a basic requirement of insurance.
Some aspects of insurance law may be surprising to the man on the street, but they are at the heart of an essential, multi billion pound industry and in practice have proved flexible enough to keep pace with commercial reality. Reform is likely and probably appropriate. The challenge for the Law Commission will be to ensure that changes to insurance law do not hamper innovation in insurance, or render policies less affordable.
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
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Rating: 0.0/10 (0 votes cast)
Tags: Browne Jacobson LLP, commercial, Insurance Law, insurers, Law Commission, payments, policyholders
Posted in Insurance | No Comments »
Monday, March 19th, 2012
A recent case has highlighted the importance of using the correct tense when referring to recoverable losses in contract.
Looking at an indemnity for losses “incurred by” a bank from early repayment of a loan the court had to decide if it covered only losses incurred up to the point of termination or losses up to that date and also extrapolated future losses.
The result: the indemnity could only cover losses incurred at the date of termination and could not be relied upon to recover losses which had not yet been incurred. To obtain these further losses the bank could have instead used the words “incurred or to be incurred”. The further inclusion of the words “on demand” in the indemnity was a further obstacle for the bank – since losses not yet crystalised cannot be indemnified “on demand”.
Further proof that indemnities will be read narrowly – so worth checking which tense you have used, are using and are planning to use in indemnities.
Our in house lawyers forum next month will help if you’re looking at what to do in practice.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: #indemnity, bank, court, loans, losses, repayments
Posted in Insurance, Professional Indemnity | No Comments »
Thursday, March 15th, 2012
A park warden slipped on ice while erecting a “keep off the ice” warning sign. Needless to say, he has claimed for compensation and the council has felt obliged to settle out of court.
In my opinion, until the court’s start to heed the general public’s perception that “health and safety laws have gone mad”, then claims like this will have to be settled as the risks of going to court are too high, with enhanced legal costs that follow an unsuccessful defence.
On a positive note, to install the tracking devices on its gritting lorries to show precisely when a particular highway treated is an excellent idea to show that an authority has complied with Section 41(1A) Highways Act.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Claims, council, health and safety, Highways Act, legal costs, local authorities, local authority, park warden slips on ice, Public Sector, risk, section 41(1a) highways act
Posted in Employers & Public Liability, Insurance, Local Authorities | No Comments »
Monday, March 5th, 2012
The Supreme Court has confirmed that investment firms hold client money on trust from the moment of receipt and not at the time the money is put into a segregated client account. Should a firm fail, all client monies held should be pooled for distribution to clients.
The Court’s decision, which clarifies the application of the provisions governing client money contained in the FSA’s Clients’ Assets Sourcebook, follows a string of recent, high profile failures of firms in which administrators had only included formally segregated client money in the pool for distribution to clients.
Administrators must take steps to identify all client monies, particularly where it is suspected the firm may not have met segregation requirements.
The response to the decision has been mixed. Those clients whose money was not segregated will certainly be happy, but for those who had a segregated client account, they are realising that the pool of funds for distribution to them is to be stretched even further.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: administrators, client money, FSA, investment, lehman brothers, receipt, segregated account, Supreme Court
Posted in Commercial dispute resolution, Insurance | No Comments »
Thursday, March 1st, 2012
Parents who admitted to bringing a fraudulent personal injury claim following a contrived road traffic collision are facing six weeks in prison for contempt of court. The sentence was reduced from an intended 12 months as they had admitted to the fraud.
A claim had been made for car damage and personal injury following a collision. The at fault insurers alleged that the claim was fraudulent and the collision contrived.
A husband and wife team admitted they had been approached by an acquaintance and, in exchange for a fee, had agreed to advance a claim following a contrived collision.
It was held that there was no alternative but to impose a custodial sentence as a deterrent and because of the wide implications to the public as a whole due to the increasing cost of insurance policies as a result of fraudulent claims.
The case signals another clear and high profile message to those bringing fraudulent claims; insurers will prosecute and the consequences to Claimants will be significant and serious.
Posted by Simon Robinson, who specialises high value complex insurance matters on behalf of private sector insurers and compensators; acts for clients on catastrophic loss, disease and anti-fraud.
Simon Robinson
0121 237 3923
srobinson@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: fraudulent claims, insurance, personal injury, road traffic collision
Posted in Employers & Public Liability, Insurance | No Comments »
Wednesday, February 29th, 2012
In publishing its response to the ‘Solving Disputes’ Consultation, the Government confirmed its intention to extend the existing low value RTA injury claims scheme to encompass higher value cases and also employers and public liability claims.
Today Jonathan Djanogley issued a letter to a number of stakeholders, including Browne Jacobson, seeking further information regarding extension of the scheme such as statistics relating to fixed fees, views on procedure and technical issues in relation to the online portal.
Under existing proposals, the process has the potential to handle in the region of 80 – 90% of injury claims. For many liability insurers, the fixed fees will account for the majority of their claims costs spend. It is therefore crucial that any extension of the process is properly planned and implemented.
Browne Jacobson will be working with its clients to prepare a response by the May deadline.
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
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Rating: 10.0/10 (1 vote cast)
Tags: employers and public liability, government, james arrowsmith, Jonathan Djanogley, RTA Claims
Posted in Employers & Public Liability, Insurance | No Comments »
Tuesday, February 28th, 2012
A horse rider has lost her case in the Court of Appeal against the owner of a horse that bucked violently causing her to be kicked in the face after she was thrown to the ground.
The court ruled that the claimant voluntarily accepted the risk that the horse could buck and so therefore the defence to liability under section 5(2) of the Animals Act 1971 was engaged. It is irrelevant that the horse bucked more violently than had been anticipated. The claimant cannot have consented to bucking but not violent bucking.
This decision follows a recent stream of similar cases where defendants have been found not liable in circumstances whereby the claimant proceeds to engage with the animal knowing of the risk which subsequently eventuates.
With this in mind it is imperative to assess both the knowledge of the claimant in relation to the relevant characteristic of the animal concerned as well as the defendant when faced with an Animals Act claim.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Court of Appeal, insurance, personal injury, section 5(2) of the animals act 1971
Posted in Insurance | 2 Comments »
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
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Rating: 9.0/10 (7 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
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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
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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
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Rating: 10.0/10 (1 vote 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
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Rating: 8.2/10 (10 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
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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
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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
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Rating: 9.5/10 (10 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 »
