As the government continues to ponder further reform of the personal injury sector, some recent decisions from the County Courts in Liverpool and Manchester suggest that the reforms may not be as pressing as some insurers would suggest.
In a recent case in Manchester, a District Judge awarded exemplary damages against the Claimants on the basis of fundemental dishonesty.
Toby Evans of Keoghs, acting for the Defendant was reported in Litigation Futures as stating:
"robust counter-fraud measures adopted by Zurich, good old fashioned intelligence analysis and a strong collaberative approach between Zurich, Salford Van Hire, their brokers and Keoghs, led to an early detection of fraud and allowed us to be entirely on the front foot in taking the fight to fraudulent Claimants, who now find themselves in the unenviable position of each having a five figure judgment against them".
This was after reports in December of a medical expert being ordered to pay a costs bill in excess of £100,000.00 after questions were raised by the Defendant over the validity of her reports.
Reading the reports of these cases, it struck me that at least some insurance companies are targeting the real source of the problem.
The problem is not whiplash itself or those representing Claimants in low value injuries. The problem is fraud and there is a need for better measures to tackle that problem. The tools are already there as the cases above demonstrate, it is up to the insurers as to whether they wish to use them.
Reforms are fine if they are targeted in the right way, but it cannot be right that many innocent Claimants stand to be undercompensated or not compensated at all for the actions of a small minority.
Any reforms should be targetting the fraudsters, making it easier to bring them to book and providing a greater deterrent against bringing a fraudulent claim. The current proposed reforms do not do that. A fraudster can still bring a claim, it will be just as easy for them to do so, with little in the way of a deterrent other than the fact that they might not get as much of a return as they do at present.
Anyway, here's hoping for more "good old fashioned intelligence analysis".
It is now approaching 8 years since the publication of Lord Justice Jackson's final report following his review of Civil Litigation costs.
The bulk of the reforms that Jackson LJ recommended were implemented in April 2013. There remains uncertainty and confusion over much of those reforms, with the law in relation to Costs Management and proportionality constantly changing and updating with each decision from the Courts.
So what might we expect from 2017. More of the same?
The appeal in BNM v MGN has been leapfrogged to the Court of Appeal, so some welcome clarity may well be forthcoming on proportionality, though do not expect that to come soon as the Judiciary website currently suggests that this hearing will not occur until October 2017!
So what about Costs Management? It is nearly four years since costs budgeting was introduced and we are only now starting to see a meaningful amount of budgeted cases proceed to the detailed assessment process.
The success or failure of Costs Management can only really be considered once a reasonable body of evidence is collected and analysed. That has not happened to date, yet there seems an inexorable stampede towards fixed costs in civil litigation. Jackson LJ will again be tasked with consulting with the industry over the next steps, though it seems inevitable that fixed costs of some variety will be implemented.
Even if fixed costs are introduced, it is likely that any introduction will start with the Fast Track or lower reaches of the Multi Track. That will mean that costs budgeting will remain for some time to come.
It is my hope that any introduction of fixed costs will be limited to the Fast Track, with some proper consideration of the impact of Costs Management completed before there is any move to extend to the Multi Track. Surely, after four years of practitioners getting to grips with budgets, phases and the like, there must be some evaluation of the success or failure of Costs Management.
The other headlines from 2016 that will continue to dominate are the increase to the small claims limit and plans to limit damages recoverable in whiplash claims with the consultation on those issues due to end on 6 January.
It seems that (at least in the early part of 2017) the issues that dominated 2016 will continue to dominate the legal press in 2017.
Whatever comes along this year, we hope that 2017 is a successful and prosperous year for all our clients and colleagues.