Legal blog: Lots on the agenda

Christmas shopping for the kids; Champions League approaching the knock-out stages; credit crunch continuing to make the front pages……possibly not the wisest time to add to the workload by way of taking on the role of President of Forum of Insurance Lawyers (FOIL). That being said, it’s certainly turned out be an interesting first couple of weeks!

As with most new roles, nothing ever quite prepares you for the reality, and I must say that any feelings of trepidation weren’t helped by the sense of relief evident in some of my predecessors, who I shan’t name (…ahem….Henry Bermingham!), to be handing over the reins. The reality, however, hasn’t disappointed – and in terms of legal issues affecting the industry, there have been a number of things for me to get my teeth into from day one.

As Insurance Times reported last week, the High Court handed down judgment on the landmark EL Policy Trigger Litigation on the 21st November – effectively clarifying the status quo that mesothelioma claims are triggered by date of inhalation and not injury. The judgment affects insurers, employers and mesothelioma sufferers alike and is something that FOIL has been following (as well as being directly involved in) closely for some time, so it’s not unusual that we were asked to comment on the ruling in various sections of the press.

I was mildly surprised to find out that our comments had been mentioned in the recent Commons Debate on Pleural Plaques. The Honorable Member suggested that it was disingenuous for me to welcome this clarification of the law and the fact that it should allow compensation for victims to be paid more quickly. As with a number of the complex issues often debated around Pleural Plaques, there appears to be a lack of understanding of the trigger litigation. The fact is that a strong body of insurers was opposing the challenge being mounted and, indeed, was successful in that challenge. Perhaps the Honorable Member will withdraw his condemnation of my comments in a future debate!

On a slightly less high profile (but equally important) note, there is a lot of work to be done as regards our response to the Ministry of Justice’s (MoJ) Consultation on Pre-Action Behaviour. The consultation coincides with a possible appeal by the defendant/insurers in the case of OCS and Wells which centered on the timing of disclosure of medical evidence.

It’s a complex case, largely due to the fact that there has been no unanimous view as to how best deal with the issue. It does however highlight the difficulty, often experienced in the middle ground, when cases are of moderate severity and insurers have little by way of leverage to apply (in terms of early disclosure of information), so that cases can be compromised sooner rather than later. It seems that all too often we as an industry are criticized for dragging things out.

Elsewhere my attentions have been focused on the outcome of our recent AGM and some of the structural changes that we are implementing in FOIL. As such, a lot my time has been spent in discussions with other members of the Executive about implementing these changes. I am also looking forward to some of the more strategic challenges of process review and possibly the judicial review in relation to the Pleural Plaques litigation. Suffice to say, I’m hoping for a slightly quieter month in the run up to Christmas, but you never know!

Anthony Hughes has recently taken over as President of Forum of Insurance Lawyers (FOIL), and is a partner at DWF.