September 14, 2010
Concurrent Evidence for Expert Witnesses
This firm has made clear that it supports those parts of Lord Justice Jackson’s review of civil litigation costs (“the Jackson Report”) that are aimed at reducing the cost of civil litigation as a whole, whilst opposing those parts of the Jackson Report that are aimed at shifting the burden of what costs remain from defendants on to claimants (see our comments at: http://tinyurl.com/2elzb39).
August 13, 2010
FSA clarifies a policyholder’s freedom to choose their own lawyer
Following the European Court of Justice’s decision in Erhard Eschig v UNIQA Sachversicherung AG (C-199/08), the director of the Financial Services Authority’s insurance sector has written to all legal expenses insurers to clarify the scope of s6 of the Insurance Companies (Legal Expenses Insurance) Regulations 1990, which deals with the freedom of a policyholder to choose their own lawyer.
July 26, 2010
Gibbon v Manchester City Council
Gibbon v Manchester City Council  EWCA Civ 726, has clarified the use of Part 36 of the Civil Procedure Rules (“CPR”) relating to the offer and acceptance of settlements under the CPR. Part 36 was held by the Court of Appeal to be a “self contained code” which did not include any other law unless the CPR expressly included it. According to the Court of Appeal the CPR was specifically designed to be clear and certain so that ordinary people, with no legal training, could follow it without expert advice.
May 27, 2010
Part 36 allows a party to make multiple offers to settle for different amounts depending on how strong they feel their case is at that any given point in time. If an offer is rejected and the rejecting party fails to win a larger amount than that offer at trial they will have to pay the other side’s costs plus interest from 21 days after the date of that rejected offer. Under Part 36 offers remain on the table unless expressly withdrawn in writing and later offers do not revoke or amend earlier ones. This is in contrast to general contract law where only one offer can be valid at any one time. According to the Court of Appeal, the purpose of this multiple offer approach is to allow a party to leave various settlement offers on the table which, despite being initially rejected, can tempt the other side into acceptance later in the litigation process.
10 things you need to know about the law
1. If you have a small claim against a financial services professional:
Financial Ombudsman Service: www.financial-ombudsman.org.uk
Part XVI of the Financial Services and Markets Act 2000: www.opsi.gov.uk/acts/acts2000/ukpga_20000008_en_19#pt16
2. If your insurer refuses a claim unfairly:
Chapter 8 of the FSA’s Insurance Conduct of Business Sourcebook: www.fsahandbook.info/FSA/html/handbook/ICOBS/8/1
3. If you have a claim for less than £5,000:
The Small Claims Court: www.hrothgar.co.uk/YAWS/framecpr/part27.htm
4. If your employer has treated you unfairly:
Employment Tribunal: www.opsi.gov.uk/si/si2004/20041861.htm#sch1
5. If you’ve bought something that doesn’t do what it says on the tin:
Unfair Contract Terms Act: www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770050_en_1#pt1-ch1-pb4-l1g9
6. If you’re being strong-armed by someone who’s provided you with a poor service:
The Unfair Terms in Consumer Contracts Regulations 1994: www.opsi.gov.uk/si/si1994/Uksi_19943159_en_1.htm
7. If you need free general advice:
Citizens’ Advice Bureau advice Guides: www.adviceguide.org.uk/
8. If they can’t help, try Delia Venables’ really useful website: www.venables.co.uk/individualorg.htm
9. If you want to find a solicitor to make a claim:
Professional negligence: www.fenchurchlaw.co.uk
Commercial disputes: www.fenchurchlaw.co.uk
Personal injury & clinical negligence: www.priceandslater.co.uk
10. When all is lost and you just need a good laugh: www.buglear-bate.co.uk
May 14, 2010
Solicitors liable for failing to advise on ATE
Adris v Royal Bank of Scotland plc  EWHC 941 (QB) has held that a solicitor is under a duty to advise its clients on the availability of After the Event insurance. Further, if a solicitor fails to provide such advice its clients are unable to take effective decisions and the solicitor is therefore acting without instructions. A non party costs order was made against the solicitor in this case, and it will be liable for costs on a joint and several basis with the Claimants against whom any costs order will be made. To the extent that the Claimants pays any costs at all, they would be wise to consider a professional negligence claim against the solicitor.
The ATE insurance market is mature and developed in this country and the level of press coverage afforded it recently (notwithstanding the level of knowledge a competent solicitor should be in possession of in any event) means that there can be no excuse for failing to advise clients on the risks of litigation and the methods of mitigating that risk. This case only refers to ATE insurance but BTE insurance on household/commercial policies may also be available. Third party funding is only suitable for a small minority of cases but this too should be considered.
April 26, 2010
Financial Services Act 2010 – class actions removed
The Financial Services Act 2010 received Royal Assent on 08.04.2010, being amongst the last few pieces of legislation rushed through parliament before it was dissolved.
One of the most interesting and controversial parts of the bill had been the introduction of collective actions for consumers allowing them to bring American style class actions against financial services firms, including banks and insurers as well as smaller firms providing financial advice.
However, these proposals received stiff opposition from Tory peers and the government dropped the measures in order to see the bill through parliament.
What has been included in the Act though is an amendment to previous legislation which now allows the FSA to draw up consumer redress schemes where it considers there has been “widespread or regular failure” from financial services firms and that as a result consumers have lost, or may lose, money. Previously such schemes had to be approved by the Treasury before being implemented.
Appetite remains high amongst the Labour party though for such class actions and redress schemes and it has been suggested that the proposals would be looked at again in the new parliament. How they would fare in an increasingly likely hung parliament is difficult to predict though.
Third Parties (Rights Against Insurers) Act 2010
The Third Parties (Rights Against Insurers) Act 2010 which received Royal Assent on 25.03.2010 has amended previous legislation governing the relationship between insurers and claimants. Its intention is to make it easier, quicker and cheaper to make a claim against the insurers of insolvent defendants.
The previous Act required a claimant to establish an insolvent defendant’s liability before being able to pursue a claim against insurers. This meant issuing proceedings against the defendant before being able to issue (separate) proceedings against the insurer. The 2010 Act now allows claimants to issue proceedings directly against the insurer in which all issues, including the defendant’s liability, can be established.
Insurers are now no longer entitled to rely on conditions in the policy made impossible by the insured’s insolvency or terms which render the policy ineffective due to the insured’s insolvency. The insurer is still though entitled to rely on defences against the claimant which it could have used against its own insured.
April 16, 2010
Quinn Administration Confirmed
Quinn Insurance has dropped its opposition to the appointment of administrators today and, as a result, Grant Thornton has been confirmed as administrator of the company by the Irish High Court. In our view this is classed as an Insolvency Event under the SRA’s Qualifying Insurer Agreement. Unless the SRA waives the Event under 19.1 of the Agreement then firms of solicitors holding professional indemnity insurance with Quinn will be required to obtain alternative cover within 28 days. The impact will be significant as firms may well see premiums soar. It is possible that some will not be able to obtain alternative quotes at all in which case the Assigned Risks Pool will be the only option if the firm wishes to continue to trade.
The SRA explicitly states that it does not vet or approve the qualifying insurers and a hard look should be taken at the advice given to firms by their insurance brokers.
March 31, 2010
Quinn Insurance enters administration
Irish insurer Quinn Insurance, which has a substantial London Market presence, has gone into administration, leaving their policyholders in a potentially precarious position. Solicitors may be particularly at risk.
Quinn is reported to insure in the region of 2,000 firms of solicitors. However, if Quinn is removed from the Law Society’s list of approved insurers (which only includes insurers which are able to meet certain criteria, including being solvent), those solicitors will be required to find alternative insurance elsewhere, or face being placed into the Assigned Risks Pool. In either case, policyholders are likely to find the cost of obtaining alternative insurance to be prohibitive.
Also under pressure as a result of Quinn entering administration are the insurance brokers who recommended that their clients buy policies from Quinn. So far as their clients incur additional costs as a result of having to find cover with alternative insurers or, in the worst case, if Quinn becomes unable to pay policyholders’ claims, the brokers that placed insurance with Quinn are likely to face mis-selling claims from their clients.
March 8, 2010
Our comments on film finance schemes for the Financial Times
Film finance schemes are back in the news for the wrong reasons, with HMRC investigating claims for tax relief by investors. For our article on the problems facing investors from last weekend’s Financial Times, please click on the following link: http://www.ft.com/cms/s/2/74d48790-287c-11df-a0b1-00144feabdc0.html