01 March 2016
Motor Brief
Welcome to the latest edition of Motor Brief.
Headlines in this edition include:

Consultation on small claims limit expected in March 2016

Lord Justice Jackson announces plans for “grid of fixed costs”

Interim report of civil courts structure review published

Impact of driverless cars under discussion in UK and Europe

Increased fees in money claims to be kept under review

Decision on electronic bill of costs put on hold
Please see our market insights article for further details.
As always, we hope you enjoy reading this edition and welcome your feedback.
Niall Edwards
Head of Motor Group
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Market insights
Motor Brief March 2016: market insights
A summary of key developments including the small claims limit, Lord Justice Jackson’s fixed fees
proposal, civil courts structure review, autonomous vehicles, increased court fees and electronic
bill of costs.
Small claims limit: insurers vow to pass on whiplash reform savings
The Ministry of Justice (MoJ) will publish an impact assessment alongside a consultation on the
Government's plans to increase the small claims limit for personal injury claims from £1,000 to
£5,000. This follows the MoJ announcement in January 2016 that it had yet to decide on the
scope of the increase.
Meanwhile, leading insurers have committed to give customers 100% of the savings made from the
proposal. The agreement comes after a roundtable meeting between the industry and the MoJ in
December 2015 to discuss the Autumn Statement 2015. The formal consultation is expected in
March 2016. The Government is also proposing to prevent claims for “minor” soft tissue injuries.
For more information please contact:
Richard West; [email protected]
Related item: Whiplash: small claims limit to increase to £5,000
(http://www.kennedyslaw.com/article/whiplash-claims-limit-increase/)
Lord Jackson’s fixed fee proposal: careful consideration required
Lord Justice Jackson has revealed that detailed plans have been made which would introduce a
“grid of fixed costs” on all civil claims worth up to £250,000. He said he believes that the legal
profession is now “more willing” to accept fixed costs as it will help to “dispense with the need
for costs budgeting, which not everyone enjoys”. The MoJ has indicated that it will carefully
consider the proposals.
For more information please contact:
Deborah Newberry; [email protected]
Civil courts structure review: interim report published
The interim report by Lord Justice Briggs confirms a “clear and pressing need” to create an
Online Court (OC) for claims up to £25,000. His provisional view excludes personal injury claims
on the fast track from the new OC. Other suggested reforms include the use of delegated judicial
officers (case officers supervised by judges). Briggs urges caution towards unification of the
Country Court and High Court ahead of implementation of the reform programme. The
consultation process will be completed by the end of May 2016 and Briggs LJ will complete the
review by the end of July 2016.
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For more information please contact:
Mark Burton; [email protected]
Autonomous vehicles: challenges for the EU
A briefing from the European Parliament on the growing technologies of vehicle automation looks
at the potential impact around the development of the technology and the challenges in
designing an appropriate legal and regulatory framework. The briefing looks at questions on data
privacy and cyber security. It recognises the need to adapt liability law to the new technologies,
including for accidents caused by malfunctions of automated systems. Meanwhile, the insurance
and liability issues are to be discussed by the Automated Driving Insurer Group led by the
Association of British Insurers.
For more information please contact:
Niall Edwards; [email protected]
Related item: Autonomous cars: beyond cruise control
(http://www.kennedyslaw.com/article/autonomous-cars-beyond-cruise-control/)
Government response to consultation on increased court fees
The Government has published its response to the consultation on proposals to increase court and
tribunal fees. The response confirms the intention to implement fee increases of 10% across the
range of civil proceedings, including enforcement and determination of costs proceedings. The
maximum fee will remain capped at £10,000 for all money claims to properly assess the impact of
the introduction of enhanced fees in March 2015. The measures form part of the plan to generate
an anticipated £15 million per annum.
For more information please contact:
Rachel Moore; [email protected]
Related item: Court fees: increase from 22 April 2014
(http://www.kennedyslaw.com/article/courtfeesincrease/)
Decision on electronic bill of costs put on hold
The Civil Procedure Rule Committee (CPRC) has decided to postpone a decision on making a new
electronic bill of costs mandatory. A committee chaired by Alexander Hutton QC raised concerns
around the timing, accuracy and cost of the new format, adding that it is not possible to run a
pilot of the changes. Minutes published by the CPRC acknowledged that “the proposal went
beyond a pilot and had major implications for the profession” and that it needed further “careful
consideration” by the MoJ.
For more information please contact:
Martin Cox; [email protected]
For more information please contact
Niall Edwards; [email protected]
Deborah Newberry; [email protected]
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Case law
Motor Brief: latest decisions March 2016
A round up of recent court decisions raising issues relating to contributory negligence of a
pedestrian, credit hire, fixed costs/Part 36, fundamental dishonesty, jurisdiction for an accident
in France and uninsured drivers.
Contributory negligence: pedestrian
Sabir v Osei-Kwabena [25.11.15]
The Claimant, a pedestrian, suffered serious injuries when she was struck by a car driven by the
Defendant. At first instance the Judge made a finding of contributory negligence at 25%. The
Court of Appeal upheld this decision. In Jackson v Murray [2015]
(http://www.kennedyslaw.com/casereview/child-pedestrian-contributory-negligence/) the
Supreme Court noted that in this field there is rarely a demonstrably correct answer. It was
necessary to consider the respective causative potency of what the Claimant and Defendant had
done and their respective blameworthiness. The destructive capacity of a driven car comes into
both aspects of the evaluation. Whilst the Claimant was unwise to attempt to cross the road when
and in the manner that she did, a collision should not have happened because it would have been
relatively easy for the Defendant to have avoided it.
For more information please contact:
Sophie Mullahy; [email protected]
Related item: Look both ways (http://www.kennedyslaw.com/article/look-both-ways/)
Credit hire: Court of Appeal decision
Sobrany v UAB Transtira [28.01.16]
Following a road traffic accident (RTA), the Claimant hired two replacement cars under credit
hire agreements, taking advantage of free insurance. Total hire costs amounted to around
£142,000. At first instance the District Judge held that there were two insurance policies in
place. He found that the claim for the second period of hire was invalid, limiting recovery to
around £9,000. The Court of Appeal considered previous judgments, including W v Veolia
Environmental Services (UK) PLC [2011]
(http://www.kennedyslaw.com/article/credithire138000recovered/). It held that it was within
the District Judge’s discretion to allow the two policies point to be run. However, it was not right
to confine the Claimant to a claim only in respect of the first period. A particular clause in the
insurance policy should not be construed as meaning that there was no cover in respect of the
second hire period. The Claimant was awarded £101,382 plus interest.
For more information please contact:
Karen Rose; [email protected]
Fixed costs/Part 36
Broadhurst and another v Tan and another [23.02.16]
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The Claimants brought (separate) claims for damages for personal injuries arising from an RTA.
The claims were commenced under the RTA Protocol but subsequently dropped out of the
Protocol. The Claimants made Part 36 offers which were not accepted by the Defendants. They
then obtained judgments which were more advantageous than their Part 36 offers. The Court of
Appeal held that where a claimant makes a successful Part 36 offer in a case where fixed costs
are prescribed by Part 45 section IIIA of the Civil Procedure Rules (CPR), they will be awarded
fixed costs to the last staging point provided by Part 45.29C and Table 6B. They will in addition
be awarded costs to be assessed on the indemnity basis from the date that the Part 36 offer
became effective. The Court recognised that this would lead to a generous outcome for the
Claimants. However, this was consistent with the policy of providing claimants with generous
incentives to make offers, and defendants with incentives to accept them.
For more information please contact:
Martin Cox; [email protected]
Fundamental dishonesty: claim struck out
Khan v Rahman and Haven Insurance Group [06.01.16]
Kennedys acted for the Defendants in their successful defence of this claim, in which the scope of
fundamental dishonesty was extended to a summary judgment application.
Two bogus Claimants presented late notification claims, one of whom issued proceedings. Both
drivers denied the Claimants’ presence. We made an application for summary judgment for the
Defendants. The District Judge entered judgment for the Defendants. He also made a finding of
fundamental dishonesty based on the written statements of both drivers, allowing the Defendants
to enforce their costs against the Claimant. Whilst the CPR make provision for a finding of
fundamental dishonesty where a claimant discontinues, there is no specific provision for a finding
where summary judgment is entered. However, the Judge agreed that it would be
disproportionate to require the Defendants to make a separate application. The remaining
Claimant’s claim has been abandoned.
For more information please contact:
Katherine Totty; [email protected]
Jurisdiction: accident in France
Marshall v Motor Insurers’ Bureau (MIB) and others; Pickard v MIB [27.11.15]
In August 2012 an uninsured Peugeot car, registered in France and driven by a French national,
hit Mr Marshall and Mr Pickard, both British nationals, as they were standing behind a Ford Fiesta
car and trailer being attended to by a breakdown recovery truck, registered in France. Mr
Marshall died at the scene and Mr Pickard suffered serious injuries. Mr Marshall’s widow and Mr
Pickard brought actions against the MIB, which in turn brought in the insurers of the breakdown
truck. Mr Justice Dingemans noted that the issue of the governing law for any assessment of
damages will be determined by the judgment of the Supreme Court in Moreno v MIB.
(http://www.kennedyslaw.com/casereview/road-traffic-accident-abroad-assessment-ofdamages/) He held that the laws of France applied to the liability parts of the claims. In
particular, applying Article 4(3) of Rome II, the tort was manifestly more closely connected with
France than England and Wales.
For more information please contact:
Rachel Moore; [email protected]
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Uninsured driver: criminal activity
Smith v Stratton and MIB [08.12.15]
The Claimant was a passenger in a Vauxhall Astra driven by the First Defendant. Whilst being
followed by a police car, the First Defendant lost control of the Astra which collided with a
parked vehicle. The Claimant suffered a severe brain injury. The First Defendant’s insurers
avoided the relevant insurance policy for non-disclosure and misrepresentation. The Court of
Appeal upheld the dismissal of the claim against the MIB. The Judge had been entitled to infer
that the Claimant had been involved in selling drugs from the car. He was also entitled to apply
the maxim of ex turpi causa non oritur actio (an action may not be founded on illegality). The
issues raised in Delaney v Secretary of State for Transport [2015]
(http://www.kennedyslaw.com/casereview/uninsureddriversexclusion/) were of no assistance to
the Claimant.
For more information please contact:
Graham Thompson; [email protected]
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Feature articles
Establishing a legacy: Insurance Fraud Taskforce final report
The Insurance Fraud Taskforce published its final report on 18 January 2016. The report makes
far-reaching recommendations to the Government, insurers, the Association of British Insurers
(ABI), the Chartered Insurance Institute (CII), Information Commissioner’s Office (ICO), Solicitors
Regulation Authority (SRA) and other industry bodies.
In its conclusion, the Taskforce calls on Government to establish a “legacy vehicle” to provide
oversight for the implementation of its recommendations and ensure that dialogue between
different sectors on insurance fraud continues.
It is reassuring to see data and intelligence sharing at the heart of the recommendations. Access
to the Claims and Underwriting Exchange (CUE) is not total across the compensator community
with many Lloyd’s Market, third party administrators and self-managing corporates unable to use
this key dataset. Data sharing initiatives must therefore go beyond the ABI membership, the
Insurance Fraud Bureau (IFB) membership and subscribers to the CUE.
Nevertheless, the recommendations, if implemented without consideration, will tread a fine line
of creating undesirable consequences and behaviours which may negatively impact the best of
intentions.
We summarise the key recommendations below.
Cross-cutting recommendations
Improve consumer trust in the insurance sector
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



Insurers must improve consumer understanding of insurance products by ensuring
communications (including application and claims forms) are easy to understand.
They must also ensure anti-fraud messaging is targeted and hard-hitting.
The ABI, IFB and Insurance Fraud Enforcement Department should develop a longterm cross-industry public communications strategy.
The ABI and CII should commission research on behavioural economics to prevent
application fraud and support best practice guidance.
Improve data available in fraud databases and data sharing schemes



Insurers should increase their membership of existing anti-fraud schemes and
databases such as MyLicence and CUE.
Insurance Database Services Ltd should allow the public to check their own claims
histories through CUE free of charge.
The ICO should provide clear guidance on data-sharing practices with reference to
forthcoming EU regulations on data protection.
Coordinate best practice


Insurers should ensure board level ownership of counter fraud activity.
The ABI should develop and promote voluntary best practice guidance based on
what the most effective firms are doing to tackle fraud.
Make defending claims more robust

The ABI should discourage the inappropriate use of pre-medical offers. Insurers
should defend more court proceedings where they believe a claim is fraudulent,
rather than providing cash settlements.
Consider legal changes to reduce exaggerated or fraudulent claims

Following the whiplash reform announcement at Autumn Statement 2015, further
work is needed to ensure that any late exaggerated or fraudulent claims not
addressed by whiplash reform are discouraged.
Premeditated claims fraud recommendations
Improve cross-industry coordination

The IFB should establish itself as a holistic intelligence hub, to include the Claims
Portal Ltd allowing the IFB access to claims portal data.
Toughen action against dishonest solicitors

The SRA should take a tougher approach to combatting fraud; insurers providing
the SRA with evidence regarding claimant law firms suspected of insurance fraud
and the SRA investigating and acting robustly.
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
Government should consider reviewing the fining powers of the SRA and
introducing a mandatory requirement for referral sources to be included on claims
notification forms.
Opportunistic claims fraud recommendations
Strengthen the regulation of CMCs


Government should establish a stronger regime for claims management company
(CMC) regulation and ensure the Claims Management Regulator has adequate
resources.
The Taskforce endorses the independent review of CMC regulation by Carol Brady.
Clamp down on nuisance callers that encourage fraudulent claims


Government should develop a coherent regulatory strategy to tackle nuisance calls
that encourage fraudulent claims.
The ICO should work with regulators operating in countries where nuisance calls
are commonly sourced to tackle nuisance calls internationally.
Tackle fraudulent claims for noise induced hearing loss


Government should consider introducing a fixed cost regime for noise induced
hearing loss (NIHL) claims.
The Taskforce endorses the Civil Justice Council’s investigation into how a fixed
recoverable costs regime for NIHL cases might work.
Application fraud recommendations

Aggregators should establish the use of existing fraud databases and data sharing
schemes on a consistent basis to detect fraud at the point of quote.
Comment
Many of the recommendations aim to demystify data sharing and encourage collaboration
and engagement in data sharing solutions to detect fraud. Being better equipped to fight
fraud has many positive outcomes. Allowing the industry to be seen to fight fraud will
remove any ‘soft touch’ perception and sends the right message of deterrence. It also
demonstrates that compensators are looking after their honest customers and employees
by not wasting money on disingenuous claimants.
In practice, such ideology needs to be balanced against the reality that many insurers operate on
a case-by-case commercial basis where fighting fraud may not make economic sense – not least
due to the foundation of fixed costs reforms that supports such an approach.
Compensators should have the option to minimise the impact of fraud and claims in the most
appropriate way to any specific claim. Where a compensator is satisfied that a presented claim is
genuine and wishes to deal with the claim quickly and in collaboration with the claimant, the
‘system’ needs to recognise that a pre-med offer is more than a ‘spreadsheet exercise’ and can
help foster trust in the sector.
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It is reassuring that the Taskforce recognises the IFB as a ‘central intelligence hub’. It is
unrealistic for one organisation to deliver data sharing across a varied and complex industry.
Ideally, the IFB will play a crucial and leading role in bringing intelligence and data into the
sector. From it must flow a network of data sharing with connected systems and databases in
order to allow a true two-way data sharing process. Only then will there be effective engagement
and the proliferation of information, shared thinking and innovation through shared ideas and
practices.
An inevitable word of caution is however required. The prospect of further legal and regulatory
change in respect of exaggerated and late claims will need careful thought. Compensators must
be given the opportunity to respond to the impact of recent changes to the claims procedure and
be allowed to properly assess future risks in order to prepare appropriately to meet new
challenges.
Fraud will look to exist in any area where conditions present as favourable. For example, might
allowing the public free access to check their records on CUE risk tailored claims presentation?
Being aware and acting quickly is important to any ongoing fraud management programme.
Change will result in new fraud behaviours and risks. Data analytics that monitor and examine
trends will be central to our understanding of those changing behaviours and the early
identification of new problem areas.
For more information please contact:
Martin Stockdale; [email protected]
Motoring ahead: navigating the Insurance Act 2015
We consider the impact of the Insurance Act 2015 (the Act) on the motor market.
The Act intends to bring into line non-consumer insurance regulation with the rules created under
the Consumer Insurance (Disclosure and Representations) Act 2012. Both pieces of legislation
were introduced to update the Marine Insurance Act 1906, which was widely considered to have
stifled the development of insurance law.
Whilst the perception exists that the Act broadly tilts in favour of insurers, there are challenges
to be alive to in the motor market for both the insurer and corporate client.
Duty of fair presentation
The existing pre-contract duty of utmost good faith is retained but subtly redefined. Any material
presentation of fact must be substantially correct. An insured is required to disclose any material
circumstance which would influence the decision of a prudent underwriter on whether to
underwrite a risk and, if so, on what terms. The provision mirrors and codifies the common law
approach set out in Pan Atlantic Insurance Co. Ltd and others v Pine Top Insurance Co. Ltd
[1994].
However, the Act introduces a number of changes:

A greater obligation of disclosure to include information:
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o
That would have been known had the insured conducted a reasonable search
internally.
o
Held by a broker.
o
Held by any party covered by the insurance arrangement.

Provision for the insured to satisfy the duty by providing the insurer with sufficient
information to place a prudent insurer on notice that it needs to make further enquiries in
order to reveal any material circumstances. Therefore, even if the insured fails to disclose
a material circumstance, the notice provision may come to its aid.

A requirement for the insured to present the risk in an accessible way. This is unlikely to
create significant problems in motor, as the obligation will usually be confined to claims
experience, driver details, vehicles on risk and use.
Consequences of a breach
Where there is a breach of the disclosure obligations, the insurer may only avoid the policy if the
breach is deemed deliberate or reckless or if the underwriter can establish the risk would not
have been accepted on any terms. Otherwise, the insurer must pick up any claims by applying
revised terms and/or adjusting the premium. The insurer may restrict its liability in proportion to
the actual premium received as against the correct premium.
Therefore, going forward, where an insurer operates in a bespoke market like motor, the Act will
make it harder for the insurer to demonstrate that it would not have accepted the risk. The
insurer will need to produce evidence of its underwriting criteria, the application to the risk at
inception, previous comparable risks and possibly even the matrix applied to premium
calculation. Evidence that an underwriting manual has been followed will be powerful. There will
be a compelling case for avoidance if the insurer is able to show its internal guidelines did not
permit acceptance of the risk.
Risk management
It is not too difficult to imagine how an insured might fall foul of this duty. Consider:

A motor trader who decides to extend the use of pool cars to offer a courtesy car service
to its customers.

A transporter agreeing to undertake the carriage of hazardous material as a small part of
its business activity.

An employed driver who has only recently completed a drink driving ban and returned to
the roads.
Each of these facts would render a risk as non-standard. Failure to disclose is likely to result in
the insurer refusing indemnity on the basis of a breach of the duty of fair presentation.
How then should a company looking at its motor insurance provision respond to the fresh
obligations created by the Act?
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Establishing a robust knowledge management process is key. Creating a platform for collating and
sharing details of the risk, determining how variations to the risk profile are to be reported and
agreeing the internal process for senior management sign off are central to good risk
management. Even if there is a breach of the duty of fair presentation, being able to establish a
strong risk process should be sufficient to negate the suggestion that breach was reckless or
deliberate (or at least invoke sympathy from the insurer).
Warranties and other changes
Any representations forming part of the insurance proposal will no longer be converted into
warranties. Where a warranty exists and is breached, but is then remedied before the date of
loss, the Act contemplates that the cover will continue as if the breach had not occurred.
Insurers will be carefully examining all remediation clauses to make sure they are consistent with
the Act. Many have already chosen not to enforce warranties in existing contracts and to remove
them from policies on renewal to avoid any conflict with the new provisions.
The advancement of a fraudulent claim will entitle the insurer to cancel the policy with effect
from the date the claim is made, retaining any premium received. The insurer will be obligated
to deal with any claims predating the fraudulent claim. For group policies, only the individual
claim can be refused on the back of fraud so the impact is not to invalidate the insurance of other
group members.
Conclusion
The changes introduced by the Act intend to create greater transparency around the presentation
of an insurance risk.
The Act brings some welcome clarity to how and when they may do so. Some provisions will
undoubtedly require judicial interpretation to ensure that all parties fully understand their
obligations and the remedies available for a breach.
For more information please contact:
Declan O’Mahony; declan.o’[email protected]
Michael Hogg; [email protected]
Related items: The Insurance Act 2015: what you need to know
(http://www.kennedyslaw.com/article/the-insurance-act-2015-what-you-need-to-know/)
Riot damage compensation: opportunity and challenges for motor
insurers?
A key feature of the Riot Compensation Bill 2015-16 (the Bill) is the wider class of property
damage and loss in respect of which claims may be made. This includes motor vehicles. We
consider the implications of such an extension.
Following the riots in London and elsewhere in August 2011, this Private Member’s Bill seeks to
repeal the antiquated Riot Damages Act 1886 (the Act). The Bill proposes the creation of a new
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compensation scheme for property damaged, destroyed or stolen in the course of riots. If passed
by Parliament, the Bill could come into force by the end of 2016.
Key proposals under the Bill: motor vehicles

A new compensation scheme for motor vehicles damaged, stolen or burnt during a riot and
for motor insurers who have met (to any extent) a claim under an insurance policy.

A ‘compensation cap’ of £1 million per valid claim. Consequential loss is specifically
excluded from the amount of compensation.

Claims to be directed to the compensation body responsible for the police area in which
the property was situated at the time of the riot. This is particularly important in relation
to motor vehicle claims where riot damage may occur away from the place where a
vehicle is normally kept.

A simplified definition of “riot”:
“Where 12 or more persons who are present together use or threaten unlawful violence
for a common purpose and the conduct of them (taken together) is such as would cause a
person of reasonable firmness present at the scene to fear for his personal safety, each
of the persons using unlawful violence for the common purpose is guilty of riot.”

Revised regulations around determining claims, to include a new entitlement enabling
property to be largely replaced on a new-for-old basis. Exceptions to apply where
indemnity value will be paid.

Lack of compliance with the claims process without good reason could result in a claim
being refused.
Implications, opportunities and challenges

The local policing body (LPB), usually the police and crime commissioner, will deal with
claims for riot damage to motor vehicles. The LPB is the very same body whose
responsibility it is to avoid riot in the first place. Might this pose a potential conflict of
interests, with submitted claims being over scrutinised and/or resisted?

Insurers will have to regear first notification of loss and claims processes in order to
redirect first party vehicle damage claims they have paid or are going to pay. Claims to
the relevant LPB will need to comply with relevant timeframes. Might this present a
resourcing issue, particularly if we were to see riots of a similar scale as experienced in
2011?
Following a riot, some insurers may be tempted to redirect non-fault policyholders
towards the LPB in the first place in order to save costs. They should be alive to the
possible impact on market share this might create.


Might there be liability issues in determining causation? Take riot damage to vehicle A
that causes it to swerve into vehicle B. Might insurer A try to redirect insurer B to the LPB
causing delay? How distant from the epicentre of a riot can vehicle damage get before it is
no longer compensable? The LPB are likely to adopt a narrow definition of causation.
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
Unlike other forms of compensable property loss under the Bill, policy excess (the element
of a claim not already compensated by the insurer) will not be recoverable by
policyholders following riot damage to their vehicle.

Untaxed vehicles subject to riot damage appear unable to give rise to a claim. Conversely,
claims can be presented in relation to uninsured vehicles damaged by riot. The prospect of
uninsured drivers being able to obtain compensation sooner than insured (but untaxed)
drivers is likely to be unattractive to insurers (and the public).
Preparing for the Bill
Motor insurers will need to keep a close eye on the Bill. The prospect of recovery from LPBs
following riot will be at the forefront of underwriters’ assessment of risk, premiums and policy
wording (and key facts) documents.
The Bill presents opportunities for motor insurers to recover sums paid out to insureds, in
particular those with motor trade lines. However, the costs of resourcing such a process cannot
be ignored. Identifying application of the proposed scheme may be lengthy and problematic.
In terms of client care, it will be necessary to modify policy documentation and care advices to
policyholders. This may include informing policyholders that they cannot reclaim policy excesses
from the LPB following a riot.
Looking ahead, lead motor insurers are likely to want to reach a consensus and a protocol on how
best to manage riot-related claims in order to provide a cost-effective and efficient system for all
concerned.
For more information please contact:
Niall Edwards; [email protected]
Related item: Riot damage compensation: new scheme ahead?
(http://www.kennedyslaw.com/article/riot-damage-compensation-new-scheme-ahead/)
Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in
England and Wales (with registered number OC353214).
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