Personal Injury Brief market insights - June 2020

A summary of key developments including an update on bereavement damages in England and Wales, the postponement of the whiplash reforms, an update on QOCS in Scotland, research into remote hearings, the FCA’s test case on business interruption cover during the coronavirus pandemic and consultation on the discount rate in Ireland and Northern Ireland.

CJC research into remote hearings

On 5 June, the Civil Justice Council reported on their research into the recent experiences of remote civil court hearings. The investigation into court users’ experiences was carried out during the first half of May and over 1,000 responses were submitted. One finding was that largely procedural or interlocutory matters appear to lend themselves better to remote hearings but less so for fully contested substantive issues.

Other key findings from the report include:

  • Personal injury claims were the most frequent case type.
  • Over half were audio-only hearings.
  • Technology problems were reported in nearly half of remote hearings (with more difficulties in full video hearings).
  • Although most lawyers reported experiences as positive/very positive, most also reported that remote hearings were less satisfactory and less effective than hearings in person.
  • Remote hearings were generally more tiring than conventional hearings, especially if fully by video, and not necessarily cheaper.
  • Variations in practice and technology platforms across regions and particular courts was described as a “persistent concern”.

Contact: Richard West

An update on One-way Costs Shifting (QOCS) in Scotland

On 13 May, the Chair of the Scottish Civil Justice Council suggested that QOCS would be in force in Scotland "no later than winter 2020".

QOCS is intended to address a perceived need to enhance access to justice and was a key recommendation of the ‘Jackson Review’ in 2009, as implemented in 2013. The origin of the equivalent reform in Scotland is Sheriff Principal Taylor’s 2013 ‘Review of Expenses and Funding of Civil Litigation in Scotland’, which resulted in the enactment of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.

Contact: Rory Jackson

Related item: How the Expenses Act 2018 will shape the future of personal injury in Scotland

Government postpones whiplash reforms to April 2021

At the end of February the Lord Chancellor made a statement pushing implementation of the whiplash reforms back to August 2020. The spread of the coronavirus pandemic and the changes it has brought to the government’s priorities have prompted the Lord Chancellor to step in again and confirm a further postponement to April 2021.

Contact: Ian Davies

Related item: Government delays whiplash portal reforms until August

Damages for bereavement: differing valuations across UK jurisdictions

On 19 March, the Ministry of Justice announced an increase to the statutory bereavement award in England Wales to £15,120. This new figure is to reflect inflation since the award was last increased to its current level of £12,980 in April 2013.

Although a long overdue increase, it highlights the divergence of fatal damages awards across the UK and Republic of Ireland.

Contact: Peter Demick

Related item: Fatal damages update – a UK and Ireland comparison

COVID-19 and business interruption insurance: FCA fast tracks proposed test case

On 10 June 2020, the Financial Conduct Authority (FCA) started proceedings in the High Court aimed at resolving the contractual uncertainty around the validity of selected business insurance (BI) claims. The first case management conference took place on 16 June, at which the trial was listed to commence on 20 July 2020 with a time estimate of eight days.

The High Court will be asked to consider the meaning of wording in clauses only, and not consider, for example, issues of quantum. The result of the test case will be legally binding on the insurers that are parties to the proceedings in respect of the representative sample policy wording considered. It will also provide guidance on interpretation of similar policy wordings and claims.

Contact: Deborah Newberry

Discount rate consultations launched – Republic of Ireland and Northern Ireland

On 15 June the Department of Justice and Equality in Ireland published the anticipated consultation in relation to how the personal injury discount rate should be set.

The focus of the consultation is whether the current system is fit for purpose and in particular whether the appropriate rate should be left to the judiciary on a case by case basis, and if there is a need to update the methodology around how the rate is calculated (as is the case the UK).

The deadline for submissions is 5 August.

Then, on 17 June 2020, the Department of Justice in Northern Ireland opened the consultation on possible changes to the legal framework for setting the personal injury discount rate.

Developments in relation to proposed changes to the discount rate in Northern Ireland have long been awaited and whilst the rest of the UK has forged ahead implementing new methodologies to their discount rate, the lack of any government in Northern Ireland led to uncertainty and complaints of discrimination by claimant representatives.

Consultees have been asked for their views on whether the new legal framework in England and Wales, or that in Scotland, would be appropriate for Northern Ireland or for suggestions about a suitable alternative framework. The consultation will close on 14 August 2020.

Contacts: Amanda Wylie and David Strahan

Related item: Proposed changes to Northern Ireland discount rate expected

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