Liability Insurance Liability Insurance - Access to Justice - Problems - Access to Justice - Problems

and Solutionsand Solutions

A Claimant Solicitor’s A Claimant Solicitor’s PerspectivePerspective

Fraser WhiteheadFraser Whitehead

PartnerPartnerHead of Parliamentary and Legal Affairs Head of Parliamentary and Legal Affairs

DepartmentDepartment

Access to Justice means…Access to Justice means…

• All deserving cases must receive All deserving cases must receive properproper compensation compensation

• Without avoidable delayWithout avoidable delay

• With encouraged access to With encouraged access to legallegal advice to ensure “proper”advice to ensure “proper”

• Accept present system not deliveringAccept present system not delivering

• Joint responsibility for thisJoint responsibility for this

So what ” problems” keep us So what ” problems” keep us apart?apart?

• Rooted history of opposition…Rooted history of opposition…

• Adversarial nature of trial process Adversarial nature of trial process encourages “getting one over”….encourages “getting one over”….

• Perceived demands of each others Perceived demands of each others commercial environments…..ah!commercial environments…..ah!

RegulationRegulation

• Solicitors Regulatory AuthoritySolicitors Regulatory Authority

• Legal Complaints ServiceLegal Complaints Service

• Duty of clients “best interests” ..firstDuty of clients “best interests” ..first

• Inadequate professional service riskInadequate professional service risk

CompetitionCompetition

• Maximising damages and the beauty Maximising damages and the beauty paradeparade

• Trials speak louder than settlementsTrials speak louder than settlements

• Staying in front reputation Staying in front reputation

ReputationReputation

• Professional negligence - covering Professional negligence - covering all cornersall corners

• Standards of performance not Standards of performance not “proportionated” to value of case“proportionated” to value of case

• The industry talks…… renewal…The industry talks…… renewal…

Obligations to Insured/ Client Obligations to Insured/ Client ….and the profit motive….and the profit motive

• Duty to do best and maximise damages Duty to do best and maximise damages • Contrasts with desire to minimise Contrasts with desire to minimise

premium costspremium costs• Costs/ profit rise with damages/timeCosts/ profit rise with damages/time• Contrasts with insurers own profit Contrasts with insurers own profit

objectiveobjective• Has industry has dumbed down- eg Has industry has dumbed down- eg

CollossusCollossus

SolutionsSolutions

• ChangeChange• Keep adversarial weapons in their Keep adversarial weapons in their

placeplace• Non proliferation treaty?Non proliferation treaty?• Collaboration where its properCollaboration where its proper• Where interests of client/ insured Where interests of client/ insured

meetmeet• Look for where they meetLook for where they meet

““PI CASE TRACK”PI CASE TRACK”

• AXA - RJW and the DCA -- (MoJ) paper on PI process

• Taking the initiative

• And it works…….

• The experience to date…….

PrinciplesPrinciples1.1.Genuine claimants should receive:Genuine claimants should receive:

1.1. Access to JusticeAccess to Justice

2.2. Proportional medical assessment Proportional medical assessment

3.3. Treatment where appropriate Treatment where appropriate

4.4. A fair transparent settlementA fair transparent settlement

2.2.Stages - Necessary, Sufficient, “Best Practice”Stages - Necessary, Sufficient, “Best Practice”

3.3.Stakeholders agreement to Consensual Stakeholders agreement to Consensual ApproachApproach

4.4.Fair to all, can be used by allFair to all, can be used by all

The claim process

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Admiral Group

ApprovalApproval• Proposed claim ‘published’ to insurer with Proposed claim ‘published’ to insurer with

recommended pathway (from IMA)recommended pathway (from IMA)

• The insurer agrees whether or not the claim is The insurer agrees whether or not the claim is suitable for Claimsensesuitable for Claimsense

• Has three options:Has three options:• Accept liability (full or shared)Accept liability (full or shared)• Agree to carry on processing (and carry cost)Agree to carry on processing (and carry cost)• Reject Reject

• Any further rehabilitation treatment that is Any further rehabilitation treatment that is recommended after initial treatment will be referred recommended after initial treatment will be referred back for approvalback for approval

PathwayPathway RehabilitationRehabilitation Medical ReportingMedical Reporting

AA Self HelpSelf Help IMAIMA

BB Physical Only + RTWPhysical Only + RTW

Mix Physio +RTWMix Physio +RTW

Physio + CBT + RTWPhysio + CBT + RTW

NHS Monitor + Top UpNHS Monitor + Top Up

IMA IMA

P Treatment Discharge Report (plus sign off P Treatment Discharge Report (plus sign off report)report)

C1C1 Physical Only + RTWPhysical Only + RTW

Mix Physio +RTWMix Physio +RTW

Physio + CBT + RTWPhysio + CBT + RTW

NHS Monitor + Top UpNHS Monitor + Top Up

IMA IMA

P Treatment Discharge ReportP Treatment Discharge Report

GM ReportGM Report

D1D1 Physical Only + RTWPhysical Only + RTW

Mix Physio +RTWMix Physio +RTW

Physio + CBT + RTWPhysio + CBT + RTW

NHS Monitor + Top UpNHS Monitor + Top Up

IMA IMA

P Treatment Discharge ReportP Treatment Discharge Report

CM ReportCM Report

C2C2 Better but claimingBetter but claiming IMA IMA

NHS Treatment Discharge ReportNHS Treatment Discharge Report

GM ReportGM Report

D2D2 Better but claimingBetter but claiming IMA IMA

NHS Treatment Discharge ReportNHS Treatment Discharge Report

CM ReportCM Report

Rehabilitation and Medical ReportingRehabilitation and Medical Reporting

SpeedSpeed

Pathway A - Instruction to settlementPathway A - Instruction to settlement

1111 weeks weeks (average)(average)

Current Average:Current Average: 52+ weeks52+ weeks

Average across all Pathways - Average across all Pathways - Instruction to settlementInstruction to settlement

approx 17 approx 17 weeksweeks (depending on rehab)(depending on rehab)

Benefits are Realised…..Benefits are Realised…..• IMA average time instruction to report 7 daysIMA average time instruction to report 7 days• IMA disputed 0% cases settlement report 60 % IMA disputed 0% cases settlement report 60 %

casescasesRehabilitation facility recommended 30%Rehabilitation facility recommended 30% cases cases

• Rehabilitation then undertaken 100% casesRehabilitation then undertaken 100% cases• Rehab report as settlement report 30% casesRehab report as settlement report 30% cases

• GP report as settlement report 10% casesGP report as settlement report 10% cases• Consultant report utilised 0% casesConsultant report utilised 0% cases

CostCost

• Average Costs Average Costs - - £2350 £2350 (PCR + Medical + ATE)(PCR + Medical + ATE)

• PICT PICT - £825 - £825

• SAVINGSAVING -- £1525£1525

Benefits to InsurersBenefits to Insurers• Legal FinalityLegal Finality

• Reduce settlement timeReduce settlement time

• Lower transaction costsLower transaction costs

• Better return to work (loss of income)Better return to work (loss of income)

• Enhanced customer experienceEnhanced customer experience

• Expected better renewal ratesExpected better renewal rates

• Anticipated streamlining of internal claims Anticipated streamlining of internal claims handling costshandling costs

• Meeting expectations on access to justice Meeting expectations on access to justice

Claimant BenefitsClaimant Benefits• Faster settlement timesFaster settlement times• Early Assessment of the injury and Early Assessment of the injury and

RehabilitationRehabilitation• Access to information and improved Access to information and improved

CommunicationCommunication• Appropriate Legal AdviceAppropriate Legal Advice• No hidden charges or unnecessary costsNo hidden charges or unnecessary costs• Process subject to independent review by Process subject to independent review by

consumer representativesconsumer representatives

Benefits are realised…...Benefits are realised…...• Length of IMA report- 3 pagesLength of IMA report- 3 pages• Length of Rehab report - 3 pagesLength of Rehab report - 3 pages• Length of Letter of Claim - 1 pageLength of Letter of Claim - 1 page• Reduction in Claims Reduction in Claims

• 20% Drop out at Initial Medical Assessment20% Drop out at Initial Medical Assessment

• Possibly spurious/ fraudulent/ exaggerated casesPossibly spurious/ fraudulent/ exaggerated cases

• An additional but welcome benefitAn additional but welcome benefit

• Average settlement £ 2500Average settlement £ 2500

Claimant CommentsClaimant Comments

"I thought a personal injury claim would "I thought a personal injury claim would be complicated but I felt this process was be complicated but I felt this process was easy to understand and a great service – easy to understand and a great service – every insurance company should be like every insurance company should be like this” this”

"I knew where I stood at all times and the "I knew where I stood at all times and the whole process took just over 3 months" whole process took just over 3 months"

““I thought it was excellent from start to I thought it was excellent from start to finish”. finish”.

• Independent file auditIndependent file audit

•

External Feedback

Neil McLaughlin, Morgan ColeSummary from independent file audit commissioned by defendant insurer

QuestionsQuestions

Thank you Thank you fromfrom

BOTH BOTH of us…..of us…..