Legal blog: Challenges afoot

I doubt you will be surprised to read that the Ministry of Justice (MOJ) claims process review continues to dominate the agenda as far as insurance law is concerned. My erstwhile president, Henry Bermingham, attended the most recent MoJ meeting in my absence, and I am due to go along to a CJC big tent-style discussion which is due to take place on 16th and 17th of March.

The upcoming meeting will look to narrow the issues between the parties and try to clarify areas of agreement and disagreement such as;

• The use of IT as against snail mail

• Costs payable where there is a denial – or rather lack of them

• The likelihood of complications in low value RTA cases

• Disclosure of the referral source – anything to hide?

• The wording of an admission of liability

• The use of rehabilitation

And many more

“I was expecting to have a golf handicap of about six by now and a body like Brad Pitt but it seems to have been mostly FOIL meetings.

One of the big challenges will be to assess the level of lawyer and work necessary to process a claim under the new proposals. It’s a critical meeting, and let’s hope that some agreements are reached. If not, I will be pleasantly surprised if the proposals do actually see the light of day in October ’09, as planned. Indeed, whilst on one hand the process has made some good ground, there is little sign of discussion / proposal let alone agreement in terms of the possible fixed costs to be used. As I have said before, this is the crucial issue and the devil will be in the detail.

I would make one plea to MOJ, if it is not ready, please don’t rush it through just to hit a target date, lets get it right. History suggests that rushing through such an important new process will only cost more in the long run. Remember the costs wars !

I also recently attended a Law Society meeting regarding Multi Track cases and how to make the costs of claims up to £100,000 more proportionate. Multi Track cases are a subject close to FOIL’s heart, as we were involved (alongside APIL) in the development of the multi track code for higher value claims last year. It is clear, however, that in this instance there are very different problems in different areas of the law: for example, whatever causes costs to build up in a professional negligence action will not be the same as a construction dispute or an injury claim.

In my view, there is a real need for specialist courts with judges who know what they are doing and can give consistent directions and decisions, as opposed to the system we have at present, which some have likened to a lottery. I would also fully support the extension of early neutral evaluation on topics, so as to narrow the issues between the parties and avoid costly and often useless disputes – a tactic that has proved very successful in family law cases.

To illustrate what a reasonable and broad minded man I am I recently met with APIL for a catch up. We discussed a number of issues where I am pleased to say there was a great deal of common ground, particularly in terms of fraud detection and claims validation. I am not kidded though, I am sure the gloves will be off on the 16th & 17th March. As Russell Crowe once said "unleash hell…”.

So, I think it’s fair to say that this gardening leave is not all it’s cracked up to be! I was expecting to have a golf handicap of about six by now (I’ve not even played) and a body like Brad Pitt (not been to the gym much either) but it seems to have been mostly FOIL meetings. Oh well, I shouldn’t complain. Indeed, there are lots to look forward to in the coming months.

Starting in April, for example, Lord Henley has agreed to host a series of lunches at the House of Lords for senior FOIL members (obviously only those who have paid their fees) and insurers. Not great for the Brad Pitt body, but Lord Henley is an excellent host and I’m sure he will not disappoint!

Anthony Hughes is president of Forum of Insurance Lawyers (FOIL).