Personal Injury Brief: market insights – March 2023
A summary of key developments including upcoming changes to the Qualified One-Way Cost Shifting regime, the Ministry of Justice call for evidence on the discount rate in England & Wales, and takeaways from The American Congress of Rehabilitation Medicine conference.
Upcoming changes to the Qualified One-Way Cost Shifting regime
The UK Government recently published its response to its consultation on changes to the Qualified One-Way Cost Shifting (QOCS) regime in personal injury cases, which was launched on 9 May 2022.
The CPR rule change essentially reverses the decisions in Cartwright v Venduct Engineering Limited  and Ho v Adelekun . For claims issued on or after 6 April 2023, defendants will be able to enforce up to the extent of orders or agreements for both damages, costs and interest.
For indemnifiers, this rule change is a welcome development. Nonetheless, as the changes are not retrospective, there is a risk that there will be a flood of claims being litigated prior to the amendments coming into force. Claimants may also seek to waive the application of the new rules, with the quid pro quo being that proceedings will not be issued. Such requests raise issues which are likely to require consideration on a case by case basis.
Defendants should therefore carefully monitor pre-action protocol compliance and raise any concerns around the premature issuing of proceedings. Further down the line, it will be interesting to see what sanctions will, or will not, be applied where claimants have issued proceedings only due to this CPR amendment.
Contacts: Lewis Thompson and Daniel Carnall
- Reforming QOCS: Kennedys welcomes proposals to even the playing field
- Imminent changes to Qualified One-Way Cost Shifting: levelling the playing field
Personal injury discount rate in England and Wales: exploring the options
In advance of the next formal review of the personal injury discount rate (PIDR) in England and Wales - which must begin by 15 July 2024 - the Ministry of Justice (MoJ) issued a call for evidence on 17 January 2023, seeking additional evidence and views on the introduction of dual or multiple rates.
The call for evidence considers different models for setting the PIDR in other jurisdictions including Hong Kong, the Canadian province of Ontario and Jersey which set different rates based on the duration of the award, in addition to the heads of loss approach adopted in the Republic of Ireland.
The call for evidence closes on 11 April 2023 after which the MoJ will prepare and publish its response by July 2023. As part of the evidence gathering exercise, Kennedys held a client roundtable on 23 March where we were joined by colleagues from Hong Kong, Ireland and an economist.
Contacts: Christopher Malla and Lauren Gosnell
Related item: Personal injury discount rate in England and Wales: exploring the options
Takeaways from The American Congress of Rehabilitation Medicine conference
The American Congress of Rehabilitation Medicine (ACRM) – the largest interdisciplinary rehabilitation research convention in the world – hosted its annual conference in Chicago in November 2022, with seminars on a number of focus areas including brain injury, spinal cord injury, telemedicine, amputations, data analytics and much more.
We attended both virtually from the UK and in-person through a member of our Global Liability and Defence team based in our Chicago office. Looking back over the various seminars, it is possible to pick out some recurring themes that collectively offer insurers and compensators an interesting insight into the future of rehabilitation. In our view, the main trends can be summarised as follows:
- Person-centred rehabilitation.
- Ongoing telehealth experimentation.
- Novel brain injury scanning techniques.
- Clinical trials of new treatment pathways.
- The promise of big data.
Contact: Mark Burton
- Review: American Congress of Rehabilitation Medicine (ACRM) Annual Conference 2022
- Brain injury breakthroughs and their claims consequences
- Advancing innovative techniques for managing post-limb loss pain
- Spinal rehabilitation technology and therapy advances
- Applications of telehealth post-pandemic
- The endless possibilities of big data analytics