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Whiplash, mesothelioma, fraud and QOCS will help ensure 2014 is not for the faint-hearted, David Johnson says
Issue:
Vol 158 no 01 07-01-14
Latest Issue:
Vol 157 no 48 17-12-13
David Johnson, president, Forum of Insurance Lawyers and large loss partner at Weightmans LLP
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What lies ahead for defendant personal injury lawyers this year? David Johnson, president, Forum of Insurance Lawyers and large loss partner at Weightmans LLP Whiplash, mesothelioma, fraud and QOCS will help ensure 2014 is not for the faint-hearted, David Johnson says
One of the key developments in 2014 is going to be the shaping of further reforms coming out of the Transport Select Committee s July 2013 report on whiplash claims and the Ministry of Justice consultation on the same topic. Linked into that, we may well also see further specific developments around fraud, with it appearing likely that the Law Commission s 12th programme of reform will include consideration of reforms to address fraudulent exaggeration in personal injury claims.
Alongside those new reforms, we will then inevitably come to see case law surrounding the unfolding judicial interpretation of the Jackson reforms, as their full effect starts to bite. Tied in with that, there is Ramsey J s review of the Jackson reforms, which one would assume will likely include recommendations for further change.
On a practical level, PI lawyers are going to have to watch closely to see whether the tough imperative set by the Mitchell judgment is reflected in the way the wider judiciary approaches case management on a day-to-day basis.
Mesothelioma
Disease lawyers will also have profound changes to cope with come July, which will mark not only the commencement of the tariff scheme for mesothelioma claimants who cannot trace an insurer but also the extension of the LASPO funding provisions so as to include mesothelioma claims (QOCS applying and success fees and ATE premiums in mesothelioma cases no longer being recoverable).
Whiplash
Looking at some of those factors in a little more detail, as a part of the whiplash reforms a joint panel of experts for whiplash cases is highly likely and we may possibly also see a ban on claimants being offered inducements to bring a claim by law firms. The complex issues involved in making the joint panel of experts work is evident from the cross industry consensus paper, signed up to by the ABI, MASS, FOIL and some MROs.
If those issues are properly addressed, the panel has the potential to deliver increased confidence in independent reporting and new found efficiencies, in circumstances where with both sides now working on a fixed costs basis, efficiency is very much synonymous with profitability. If they are not properly addressed, the panel runs the risk of becoming no more than a white elephant. The government has declared that it wants to tackle this issue at a pace with implementation in 2014.
Fraud
Regarding fraud, the Law Commission s consultation over what its 12th programme of reform might cover attracted multiple responses calling for reform of the law on third party fraud, i.e. the court having the power to strike out a claim in its entirety in the event of the claimant being shown to have engaged in gross exaggeration.
The prospect of that initiative gaining momentum looks good, Justice minister Shailesh Vara having remarked in the House of Commons debate on whiplash in November that there will be a focus on fraudulent and exaggerated claims and it not being right that dishonest claimants get away with it .
QOCS
In terms of case law surrounding the Jackson reforms, look out for the defining of what is meant by fundamental dishonesty as an exception to QOCS, and perhaps the odd pitched battle over what will or will not be recognised as a valid Part 36 Offer for similar reasons.
When it comes to Ramsey J s review, those anticipating no more than a tidying up inconsistencies in the rules should think again. We are promised a new bill of costs compatible with Precedent H, consideration of pre-action costs management and consideration of pre-action case management, an agenda which would seem to have the potential to break new ground in a pretty fundamental way.
2013 has most definitely proved a year of profound change, at a pace. Looking to the horizon, 2014 would seem to bring the promise of more of the same, the world of personal injury litigation definitely not being for the faint-hearted in these times.
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