Archive for the ‘Insurance’ Category
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
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Rating: 9.9/10 (8 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
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Rating: 10.0/10 (7 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
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Rating: 9.6/10 (10 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
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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
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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
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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
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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
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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
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Rating: 9.4/10 (9 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
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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
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Rating: 10.0/10 (11 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
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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 »
Friday, September 30th, 2011
The European Council and the Economic and Monetary Affairs Committee have proposed that regulated firms will need to comply with Solvency II requirements from 1 January 2014. They have also proposed that firms must submit their implementation plans to supervisors in the summer of 2013.
The Council has also suggested that the European Insurance and Occupational Pensions Authority (EIOPA) should have until 31 March 2013 to issue guidelines on the contents of implementation plans. With the deadline for delivery of implementation plans set for 1 June 2013, and with most firms having already begun drafting (or, at least, considering) their implementation plans, the industry will be concerned that there will be insufficient time to respond to EIOPA’s guidance before the deadline for submission, just 2 month’s later.
The FSA is yet to issue any comment in response to the Council’s proposals.
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
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Rating: 10.0/10 (1 vote cast)
Tags: browne jacobson, economic and monetary affairs committee, EIOPA, European Council, european insurance and occupational pensions authority, FSA, insolvency, insurance, Pensions, regulated firms, solvency II, Tim Johnson
Posted in Insurance | No Comments »
Wednesday, September 28th, 2011
On 1st October Practice Direction 51G Costs Management in the Mercantile Courts and the Technology and Construction Courts will come into force. Despite its less than catchy title, this will have important consequences for litigation in those courts.
Going forward litigants will have to file and serve spreadsheets project managing each stage of the proceedings and pricing out each section. Judges will voice their approval or disapproval of the costs budget. Judges may also take a cold hard look at the proposals the parties make in terms of how the parties wish to present their claim, say the number of witnesses and see if matters are being progressed proportionately.
A party may apply to the court if one party believes that the other is behaving oppressively and causing the other party to spend money disproportionately. It will be interesting to monitor how actively judges project manage cases and costs going forward. Also if this Practice Direction is successful whether Costs Management will be extended in other courts.
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: costs budget, litigation, Mercantile Courts, Practice Direction 51G Costs Management, Technology and Construction Courts
Posted in Insurance, Litigation | No Comments »
Friday, September 16th, 2011
The Commercial Court last week in Capita AFS (Guernsey) Ltd v Drivers Jonas ruled against the defendant firm of valuers, awarding damages of £18.05m.
Drivers Jonas were found to have negligently over-stated the commercial prospects and value of a factory outlet shopping centre in Kent.
One of the salutary warnings to emerge from the decision is that professionals are likely to be in breach of duty if they take on jobs beyond their capability or experience. In this case, the Judge gave very short shrift to the valuers’ protests that (1) the client knew all about the defendants’ lack of expertise in any event and (2) there was scope to acquire the necessary experience ‘on the job’.
What the valuers should have done – at the outset – was decline to act (or at least advise that the necessary expertise be commissioned from elsewhere!)
Drivers Jonas’ PI insurers are understood to be looking at an appeal in this matter.
Posted by Nik Carle, who specialises in professional negligence and insurance coverage disputes; deals with claims against advisers in the IT, legal, property, media and financial services’ sector.
Nik Carle
0115 976 6143
ncarle@brownejacobson.com
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Rating: 5.5/10 (2 votes cast)
Tags: drivers jonas, insurers, professional indemnity, professional negligence
Posted in Professional Indemnity | No Comments »
Friday, September 9th, 2011
The Government today confirmed that it will ban referral fees in Personal Injury Claims, though no details have been given regarding implementation. Jack Straw is expected to place a bill proposing a ban before parliament next week, or the Government may choose to act through amendment to The Legal Aid, Sentencing and Punishment of Offenders Bill.
The Government hopes to reduce the cost of claims to the public, by curbing the ability of companies to profit from injury claims. Measures which move profits to another point in the claims process or which can be circumvented by new business models will be ineffective. The challenge will be to ensure the measures are comprehensive and robust.
Ultimately, profiteering from injury claims can only be addressed by government and the Ccourts taking control of conduct and the costs awarded to parties in personal injury litigation.
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: government, personal injury claims, referral fees, the legal aid sentencing and punishment of offenders bill
Posted in Insurance | No Comments »
Thursday, August 11th, 2011
The Highways Agency, which oversees motorways and trunk roads is introducing rules requiring contractors to carry out emergency repairs only if the potholes are more than 4cm deep or 15cm wide, meaning that potholes under this size will not be repaired.
Previously contractors were required to ensure the road gave an “even, comfortable and quiet” ride and to patch even minor defects within 24 hours.
Concerns have been raised that this will lead to more temporary speed restrictions being imposed and cost more in the long term because there will be less preventive maintenance but the real concern must be to the safety of the road network with the increased risk of motor accidents and the increase in claims against the Highways Agency.
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: 9.2/10 (13 votes cast)
Tags: budgets, code of practice for highway maintenance, emergency repairs, Highways Agency, insurance, local authorities, potholes, steven conway
Posted in Insurance, Local Authorities | No Comments »
Wednesday, August 10th, 2011
Disturbances in London and major cities is expected to cost the country around £200 million. While domestic and many commercial insurance policies will provide cover, the Riot Damages Act is broadly expected to permit both insurers and uninsured victims to recoup losses in relation to property damage. It is unclear what the police position will be in relation to whether the disturbances fall within the act.
Claims under the act must be submitted within 14 days of the damage taking place, though the ABI and others are lobbying for an extension to 42 days. Insurance policies typically make it a condition precedent that incidents be reported within 7 days. Prompt action is essential as full details of the damage must be submitted.
- Policyholders must ensure they report damage to insurers immediately, or risk having their claim rejected
- Insurers should encourage policyholders to report losses, and must ensure claims are submitted to relevant police authorities within 14 days
Posted by Derek Bambury, who specialises in professional indemnity, dealing with claims against a wide range of professionals; experienced in policy coverage disputes.
Derek Bambury
0115 976 6204
dbambury@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: ABI, birmingham, Claims, commercial insurance policies, london, manchester, police authorities, Riot Damage Act
Posted in Insurance | No Comments »
Friday, August 5th, 2011
The Civil Justice Council are to put together a working party to develop practical proposals on the back of the Government’s plans following Lord Justice Jackson’s review of civil litigation costs.
The working party will look at implementing secondary legislation, focusing on qualified one way cost shifting, the introduction of additional sanctions and rewards under Part 36 as well as the detail of the proportionality test and when the test should not be applied.
Crucially, the party will not be considering the government’s original policy objectives but focusing instead on the practicalities of introducing these measures.
The working party are expected to complete papers on these proposals by the end of September this year.
Insurers will be interested to note that representatives from key civil law areas affected by the proposals will be invited by the CJC to attend and provide feedback at a workshop expected to take place in October.
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: 0.0/10 (0 votes cast)
Tags: civil justice council, Civil Litigation Costs, civil litigation reforms, cjc working party, lord justice jackson, one way costs shifting, Part 36, professional indemnity, proportionality test
Posted in Professional Indemnity | No Comments »
Wednesday, July 27th, 2011
An army officer’s claim for damages for personal injuries sustained during a formal adventurous training exercise has been dismissed by the court.
As the leaders of the group crossed a rugged terrace there was a rock fall from the area where they had reached. One of the group was struck on the head by a rock and suffered skull fractures resulting in a severe traumatic brain injury.
The court ruled there had been no breach of duty of care by the leaders. The leaders held appropriate qualifications to lead the climb and had undertaken proper risk assessments and continuous reviews. It was impossible to say what triggered the rock fall and a fuller reconnaissance of the route would not have led to any different course of action.
This tragic accident demonstrates that many hazardous activities carry inherent risks which cannot be negated completely and provides a good indication as to the extent of planning organisers should have in order to satisfy their obligations.
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, insurance, negligence, personal injury claims, risk assessments
Posted in Employers & Public Liability, Insurance | No Comments »
