Court of Appeal decision on the “date of knowledge” under s14A Limitation Act 1980

In personal injury cases proceedings must be issued at court within 3 years of the date on which the injury occurred or, if later (for instance, where the injury is latent), within 3 years of the date that the injured person had the knowledge required in order to bring the claim (s.14A Limitation Act 1980).

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Concurrent Evidence for Expert Witnesses

This firm has made clear that it supports those parts of Lord Justice Jackson's review of civil litigation costs ("the Jackson Report") that are aimed at reducing the cost of civil litigation as a whole, whilst opposing those parts of the Jackson Report that are aimed at shifting the burden of what costs remain from defendants on to claimants (see our comments at: http://tinyurl.com/2elzb39).

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10 things you need to know about the law

1. If you have a small claim against a financial services professional:

Financial Ombudsman Service: www.financial-ombudsman.org.uk

Part XVI of the Financial Services and Markets Act 2000: www.opsi.gov.uk/acts/acts2000/ukpga_20000008_en_19#pt16

2. If your insurer refuses a claim unfairly:

Chapter 8 of the FSA’s Insurance Conduct of Business Sourcebook: www.fsahandbook.info/FSA/html/handbook/ICOBS/8/1

3. If you have a claim for less than £5,000:

The Small Claims Court: www.hrothgar.co.uk/YAWS/framecpr/part27.htm

4. If your employer has treated you unfairly:

Employment Tribunal: www.opsi.gov.uk/si/si2004/20041861.htm#sch1

5. If you’ve bought something that doesn’t do what it says on the tin:

Unfair Contract Terms Act: www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770050_en_1#pt1-ch1-pb4-l1g9

6. If you’re being strong-armed by someone who’s provided you with a poor service:

The Unfair Terms in Consumer Contracts Regulations 1994: www.opsi.gov.uk/si/si1994/Uksi_19943159_en_1.htm

7. If you need free general advice:

Citizens’ Advice Bureau advice Guides: www.adviceguide.org.uk/

8. If they can’t help, try Delia Venables’ really useful website: www.venables.co.uk/individualorg.htm

9. If you want to find a solicitor to make a claim:

Professional negligence: www.fenchurchlaw.co.uk

Insurance: www.fenchurchlaw.co.uk

Commercial disputes: www.fenchurchlaw.co.uk

Employment: www.josephsuttonsolicitors.com

Personal injury & clinical negligence: www.priceandslater.co.uk

10. When all is lost and you just need a good laugh: www.buglear-bate.co.uk


Financial Services Act 2010 - class actions removed

The Financial Services Act 2010 received Royal Assent on 08.04.2010, being amongst the last few pieces of legislation rushed through parliament before it was dissolved.

One of the most interesting and controversial parts of the bill had been the introduction of collective actions for consumers allowing them to bring American style class actions against financial services firms, including banks and insurers as well as smaller firms providing financial advice.

However, these proposals received stiff opposition from Tory peers and the government dropped the measures in order to see the bill through parliament.

What has been included in the Act though is an amendment to previous legislation which now allows the FSA to draw up consumer redress schemes where it considers there has been "widespread or regular failure" from financial services firms and that as a result consumers have lost, or may lose, money. Previously such schemes had to be approved by the Treasury before being implemented.

Appetite remains high amongst the Labour party though for such class actions and redress schemes and it has been suggested that the proposals would be looked at again in the new parliament. How they would fare in an increasingly likely hung parliament is difficult to predict though.

 


Third Parties (Rights Against Insurers) Act 2010

The Third Parties (Rights Against Insurers) Act 2010 which received Royal Assent on 25.03.2010 has amended previous legislation governing the relationship between insurers and claimants. Its intention is to make it easier, quicker and cheaper to make a claim against the insurers of insolvent defendants.

The previous Act required a claimant to establish an insolvent defendant’s liability before being able to pursue a claim against insurers. This meant issuing proceedings against the defendant before being able to issue (separate) proceedings against the insurer. The 2010 Act now allows claimants to issue proceedings directly against the insurer in which all issues, including the defendant’s liability, can be established.

Insurers are now no longer entitled to rely on conditions in the policy made impossible by the insured’s insolvency or terms which render the policy ineffective due to the insured’s insolvency. The insurer is still though entitled to rely on defences against the claimant which it could have used against its own insured.


Quinn Insurance enters administration

Irish insurer Quinn Insurance, which has a substantial London Market presence, has gone into administration, leaving their policyholders in a potentially precarious position. Solicitors may be particularly at risk.

Quinn is reported to insure in the region of 2,000 firms of solicitors. However, if Quinn is removed from the Law Society's list of approved insurers (which only includes insurers which are able to meet certain criteria, including being solvent), those solicitors will be required to find alternative insurance elsewhere, or face being placed into the Assigned Risks Pool. In either case, policyholders are likely to find the cost of obtaining alternative insurance to be prohibitive.

Also under pressure as a result of Quinn entering administration are the insurance brokers who recommended that their clients buy policies from Quinn. So far as their clients incur additional costs as a result of having to find cover with alternative insurers or, in the worst case, if Quinn becomes unable to pay policyholders' claims, the brokers that placed insurance with Quinn are likely to face mis-selling claims from their clients.


Our comments on film finance schemes for the Financial Times

Film finance schemes are back in the news for the wrong reasons, with HMRC investigating claims for tax relief by investors.  For our article on the problems facing investors from last weekend's Financial Times, please click on the following link: http://www.ft.com/cms/s/2/74d48790-287c-11df-a0b1-00144feabdc0.html


Our thoughts on the Jackson review

Lord Justice Jackson's review of litigation costs has two interrelated, but distinct strands. Firstly, he makes recommendations which are aimed at reducing the cost of the litigation process overall. Secondly, he makes recommendations which are aimed at shifting the burden of what costs remain from one place to another.

The first strand (reducing costs overall) is in the interests of both claimants and defendants, and Lord Justice Jackson's recommendations should be welcomed by everyone involved in the dispute resolution process.  However, Lord Justice Jackson's approach to the second strand (shifting the burden of what costs remain) is, in our view, of real concern.

At present, the cost of litigation is borne primarily by defendants whose actions have caused others (successful claimants) to suffer loss. Many of Lord Justice Jackson's recommendations will, if implemented in their current form, have the effect of shifting the costs burden from (unsuccessful) defendants to (successful) claimants.

The difficulty with this approach is that many defendants (employers, professional advisers, property owners etc) are able to spread the cost of any claims which they may face by insuring against them. In this respect, the defendants "stand together". Claimants, on the other hand, "stand alone", as we do not, in this country, have a viable market for allowing potential claimants (i.e. all members of the public) to insure against the risk of suffering a loss due to someone else's actions, and having to incur the cost of pursuing a claim.  As a result, whereas defendants are, in many cases, able to spread the cost of becoming involved in a dispute, claimants are unable to do so.

Unless commercially appropriate "before the event" insurance becomes widely available, the only way to spread the costs of the litigation process in a way that is financially manageable for those involved, is for those costs to be borne primarily by those who are able to stand together, as opposed to those who necessarily stand alone.

For these reasons, it is our view that the recommendations from the Jackson report which are aimed at shifting costs from one place to another are socially undesirable, and should be opposed.


Financial Services Bill progress

The Financial Services Bill is due to receive its second reading in the House of Lords (when all aspects of the bill will be debated) on 23.02.2010. In its current form the Government bill, which has so far remained intact throughout its progress through the House of Commons, proposes to allow consumers to join together to bring claims against FSA-regulated professionals (such as financial advisers and insurance brokers) in cases where there has been a mass failure of practice which has affected significant numbers of consumers. If the proposals become law, they will reduce the cost to consumers of making claims against financial services professionals which arise out of endemic (as opposed to "on-off") mistakes or bad advice.

We'll be tracking the progress of the bill until it receives Royal Assent on the Fenchurch Law twitter feed.


Fenchurch Law twitter feed

The Fenchurch Law twitter feed is now live!  From now on, we'll be tweeting daily, helping to keep you up to date on new developments in the law relating to professionals and insurance.  We'll be highlighting key cases and changes to the CPR, and we'll also be keeping tabs on ongoing processes such as the Law Commissions' review of insurance contract law, and the follow-ups to Lord Justice Jackson's report on costs.