Judicial review of Government response to COVID in care homes: imminent hearing in England & significant developments in Scotland

Last November we reported on Mr Justice Linden’s decision to grant permission for judicial review on all grounds of the UK government’s policies and measures which had a bearing on the protection of care homes during the COVID-19 pandemic. The claim, which relates to patient discharge policy in England, will be heard later this month. In respect of Scotland, recently released information by public health authorities appears to acknowledge some important difficulties there in the early part of last year. This blog explores the key issues in both jurisdictions and sets the scene for the (English) judicial review later this month.

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Out of COVID-19 lockdown and into new territory? QOCS is still coming to Scotland…

By Scottish Ministerial order, Qualified One-way Costs Shifting (QOCS) is to apply to Scottish personal injury claims – including disease claims and fatality claims – litigated from 30 June 2021. To recap, QOCS is a departure from the usual ‘loser pays’ approach to legal costs and expenses. The guiding principles of QOCS are (i) promoting access to justice in these types of case by generally protecting losing pursuers (hence ‘one way’) from having to meet successful defenders’ costs and (ii) at the same time enabling the removal of that protection in limited specific circumstances (hence ‘qualified’).

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From business interruption to GI pricing…

Attending (virtually) the ABI annual conference early this week I had the distinct impression of  an industry that is ready to move on from the BII test litigation which has dominated debate in the sector for the last nine or so months. ABI Chair & Allianz CEO Jon Dye said that the lessons to be learned from the case were in the need for clarity on policy wordings and in managing customer expectation. But in one sense the spotlight still shines on BII, as illustrated by the call from the FCA for relevant claims now to be paid promptly and in its letter this week setting out very clear expectations of intermediaries involved in the claims process.

Following immediately after BII, the next regulatory tsunami hitting the industry will be the FCA’s remedies package on general insurance pricing. The pricing review was – rightly – among Jon Dye’s three key strategic priorities for the industry this year (the others being the climate challenge and the review of Solvency II). The final GI pricing review consultation closed on 25 January and a policy statement is due from the FCA in Q2 2021, i.e. in the coming weeks or months. Implementation of the final package of remedies will shake up ‘price walking’ once and for all, with tangible long-term effects on business models across all distribution channels.

Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com