Effective delegation?

terms and conditions

A regulatory guide published by the financial services regulator in 2007 requires that “a customer’s experience should not be affected by whether a product or service was provided and distributed by a single institution or by two or more institutions”. This guide – The Responsibilities of Providers and Distributors for the Fair Treatment of Customers, or RPPD – is still very much in force and on 2 June 2015 the regulator (now the FCA) published results of its thematic review of delegated authority in the GI market, which examines how effectively firms are performing against this standard.

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Whiplash reforms – medical evidence

steering wheel

The MoJ continues to work, largely behind the scenes, with stakeholders on the detail of the so-called “MedCo”. This was the working title for the project to design and deliver an IT solution which would randomly allocate instructions to independent and accredited medical experts in low value soft tissue injury claims.

The MoJ published its analysis of responses to its second tranche proposals for whiplash reform (the first being the introduction of fixed charges for medico-legal reports in low value soft tissue injury claims).

In respect of the first set of reforms, which apply to CNFs lodged after 1 October 2014, the MoJ has issued a small and discrete correction (to the definition of “associate” for the purposes of independence of the reporting expert). This quite minor amendment should be taken with a note of caution – If the Moj’s thinking on “MedCo” is to be implemented before the Election then it would be hoped that the speed of delivery would not pay detriment to a properly functioning solution.

The Civil Justice Council has issued revised Guidance for the instruction of experts in civil claims. The following extract deals with the clear unsuitability of instructing experts on contingency arrangements…

Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2008] QB 381 at [73], the court said “we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement”.


About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

Vicarious liability

UK Supreme Court final

The Supreme Courts (SC) is looking at this principle in depth once again – despite thorough analysis in recent years in cases such as Catholic Child Welfare Society v Various Claimants (before the SC) and JGE v Portsmouth (in the Court of Appeal).

The SC has granted permission to appeal in the case of Cox v Ministry of Justice, a claim which turned on whether the defendant should be vicariously liable for the negligence of a prisoner undertaking food service duties in the prison in which he was serving his sentence. The granting of permission in Cox suggests that the Justices are quite prepared to take another look at vicarious liability in the medium term.

Last year Lord Hope, the former deputy President of the SC, delivered an extra-judicial speech on vicarious liability which concluded with the following concerns, which are worth repeating in full…

“It may be … that some further refinement [of vicarious liability] will be needed to meet demands for compensation for sexual abuse of children within the entertainment industry. The precise criteria for imposing vicarious liability in such or other cases have yet to be defined. What are to be taken to be the parameters? What, if enterprise liability is to be the governing principle, is an enterprise? How is  one to determine what is, and what is not, within the range of activities for which those in charge of that enterprise can be fairly held to be vicariously responsible? What part does the risks that the activities may give rise to have to play in that assessment? One must hope that the search for clearly defined criteria, as one moves further and further away from the employer/employee relationship, is not abandoned simply in order to meet the need for a solution on a case by case basis.”


About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).