Personal Injury Brief market insights - September 2021

A summary of key developments including new guideline hourly rates, new rules coming into force on 1 October 2021, the Civil Justice Council’s interim report on the resolution of small claims, draft guidance on rehabilitation after traumatic injury, the UK Government’s response to the National Data Strategy consultation, and a political landscape roundup.

Political landscape roundup – COVID-19

A new variant of COVID-19 has been identified in South Africa and has subsequently been identified in eight other countries. The C.1.2 variant has captured researchers’ interest because it carries a number of genetic mutations similar to those found in other highly transmissible variants, though scientists are yet to establish whether it is more contagious or more resistant to existing vaccines. The new variant is likely to accelerate calls for global vaccination efforts, especially in Africa where just 2% of people have been fully vaccinated.

However, many uncertainties remain, with data on how long immunity lasts still being collected. In the UK, discussions around the risk of increasing rates and COVID-19 boosters have been floated in government documents since February 2021. On 9 September 2021, the Medicines and Health Regulatory Agency gave approval for both Pfizer-BioNTech and AstraZeneca to be used for a booster jab regime. Booster vaccines are expected to be approved next week.

The UK Government has been accused of a “hit and hope” COVID-19 strategy by the Association of School and College Leaders as students return to school for the start of a new term in England. Many of the precautions in place during the last academic year – including classroom ‘bubbles’ and mandatory isolation after contact with someone with COVID-19 – have been scrapped in favour of PCR testing. Reports have already been circulating on a potential October half term “firebreak”, although the Department for Education recently tweeted denying that such a plan is in place.

Education sector leaders have drawn attention to Scotland’s rise in COVID-19 cases since schools returned as a reason to be cautious. Nicola Sturgeon said she could not rule out the possibility of some COVID-19 restrictions being reintroduced.

Contact: Fiona Hamilton-Wood

New guideline hourly rates from 1 October 2021

The Civil Justice Committee (CJC) undertook a review during 2020 and published its consultation in January 2021. The CJC’s final report on guideline hourly rates was published on 30 July 2021. The recommended rates are set out below to include the percentage increase from the 2010 rates:

On 17 August 2021 the Master of Rolls confirmed that the CJC working group’s proposed rates were accepted and asked that the recommendations set out in the final report be implemented, with a view to the new guide being used from 1 October 2021.

Contacts: Daniel Carnall and Lewis Thompson

Related item: Guideline hourly rates – impact and mitigation

New rules coming into force on 1 October 2021

New rules are coming into force on 1 October 2021, as introduced by The Civil Procedure (Amendment No. 4) Rules 2021. These mainly address minor issues and provide clarity, as opposed to providing substantial change. Key points to note:

  • Permission of the court must be obtained before making a voluntary interim payment to a minor or protected parties. The amendment clarifies that applications for approval should be made under Part 8. Further, “the court is able to take the step of ordering payment of costs to the child’s litigation friend in a case where detailed assessment of costs has been dispensed with under rule 46.4(3).”
  • Amendments are made in relation to the meaning and application of “tape recording” of proceedings to cover “any form of recording in court (particularly digital means of recording)”, bringing the rule in line with technological advancements.
  • CPR Part 25 is also amended regarding the position where a counterclaim is struck out. The amendment “addresses a current lacuna in the Rules and clarifies the position where a defendant, who has brought a counterclaim, is granted an interim injunction in the counterclaim, but the counterclaim is struck out for non-payment of fees: the effect is that the interim injunction ceases to have effect after 14 days unless the defendant has within that period applied to reinstate the counterclaim.”

Contacts: Joanne Kelly and Amber Jenner

Civil Justice Council publishes interim report on resolution of small claims

The Civil Justice Council’s (CJC) interim report – ‘The Resolution of Small Claims’ – was published in June 2021.

The report considers the changes to the way in which small claims have been processed by the courts during the pandemic and how these adaptations could be taken forward to improve the way such claims are handled and resolved.

Recommendations include ensuring that every case in which the parties opt for mediation receives a mediation appointment before a final hearing, third-party mediators to make-up any deficit in resourcing of mediation and amending the CPR rules to allow greater flexibility when a preliminary hearing takes place. The CJC also recommend that court centres should give consideration to implementing listing of preliminary hearings at directions stage, pre-hearing triage before a final hearing using checklists to organise final hearing details, and ‘blitz’ hearings to deal with backlog of cases.

Provided that the quality of the court process is maintained, the review and potential reforms are to be welcomed, as a streamlining of such claims should bring the opportunity for cases to be progressed more efficiently and at a reduced cost.

Contact: Paul Morris

Related item: Civil Justice Council interim report on resolution of small claims: current practice and future changes

NICE publish draft guidance on rehabilitation after traumatic injury

The UK’s National Institute for Health and Care Excellence (NICE) recently published new draft guidance, focused on rehabilitation after traumatic injury. Individual stakeholders from the compensation sector are unable to directly contribute but are instead encouraged to do so via whichever national organisation best represents their interests, or alternatively, to submit their informal comments via email.

The draft recommendations advise that the rehabilitation needs of an injured person should be assessed and discussed with the patient and their family at an early stage. Further, a person-centred and individualised approach should be taken throughout, with a named rehabilitation coordinator or key worker overseeing the injured person’s care while they are in hospital. Once discharged, a patient’s needs should be reassessed and the rehabilitation plan reviewed. The patient should be provided with a single point of contact at the hospital for information, help and advice for a limited time period and family members/carers should be actively involved in the transition to outpatient and community services.

The consultation makes no express reference to mixed rehabilitation packages of NHS and privately-funded resources or compensation scenarios or of how they should interact. In our view, this represents a significant missed opportunity to evaluate how best to structure the common scenario of a private case manager liaising with statutory services, including how they should work with the appointed rehabilitation coordinator so as to avoid any clinical conflict or duplication.

The publication of the guidelines is expected on 18 January 2022. Kennedys does not qualify as a stakeholder, but we have nonetheless provided our comments to NICE.

Contact: Mark Burton

Related item: The NICE consultation on rehabilitation after traumatic injury

UK Government responds to National Data Strategy consultation

On 18 May 2021, the Department for Digital, Culture, Media and Sport published the government’s response to the consultation on the National Data Strategy.

The National Data Strategy was released in September 2020 and aims to reflect “the opportunities and challenges of our new hyper-digital world”. The strategy covers both personal and non-personal data. Last year, when responding to the consultation, we agreed that data and data use should be seen as opportunities to be embraced, rather than threats against which to be guarded – as long as the appropriate checks and balances are in place. In its response, the government has also placed emphasis on “data as an asset”. 

The focus now shifts to implementation in conjunction with launching the National Data Strategy Forum. The response refers to a phased approach to future publications in terms of the strategy’s missions which will include not only updates on what the government is doing but also provides insights into the wider data landscape and ecosystem. The government seeks updates from stakeholders such as reports, projects or case studies.

Contacts: Deborah Newberry and Fiona Hamilton-Wood

Related item: UK Government responds to National Data Strategy consultation

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