Extending the scope of QOCS protection

The basis of QOCS is that the protection it affords against adverse costs applies to unsuccessful claims for personal injuries. These are conventionally argued in negligence against the defendant whose conduct caused the accident e.g. the negligent driver or employer. But should a statutory claim against an organisation which was not the tortfeasor be regarded as a claim for damages for personal injuries protected by QOCS?

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Upcoming Supreme Court cases

The SC has just published details of its hearings in June and July and the following are of interest.

Zurich Insurance v Hayward will be heard on 16 June. The key question is whether a settlement can be reopened, and money recovered, by the insurer because subsequent evidence led it to realise that the claimant was fraudulent to a far greater extent than suspected at the time of the settlement.

MIB v Moreno is being heard on 12 July. The point in this case is whether the EU’s Rome II Regulation of 2007 should designate the applicable law in a foreign uninsured driver claim or whether (as had been held by the Court of Appeal in Jacobs v MIB in 2010) a UK statutory instrument from 2003 (by which a UK claimant can pursue the Bureau directly) means that English law applies. This case is a ‘leapfrog’ appeal from the High Court.

Impact Funding v AIG relates to liability for disbursement funding and specifically whether a solicitor’s professional indemnity insurer should cover disbursement loans made by a firm. Of particular note is that the loans here related to disbursements in connection with significant numbers of claims for industrial deafness.

The Supreme Court’s decision in Versloot Dredging, (heard in mid-March) which turns on the use of a ‘fraudulent device’ to further an otherwise genuine insured loss, is still awaited and may be given before the summer break.

Among cases in which the Supreme Court has recently granted permission to appeal are Edmondson v Haven Insurance and Armes v Nottinghamshire. The former involved a motor insurer settling directly with legally represented third party claimants and arguing, successfully at first instance but not in the Court of Appeal, that it did not have to meet the legal costs under the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. The latter concerns whether the defendant local authority owed the claimant a non-delegable duty of care in relation to, or was vicariously liable for, abuse which she suffered from foster parents into whose homes she had been placed.

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).

Not for courts to impose on insurers liabilities which they are not required to bear

Five UK Supreme Court Justices, in the guise of the Judicial Committee of the Privy Council (JCPC), handed down a judgment in December about the scope of compulsory motor insurance – in the context of the applicable legislation on the Bahamas. The relevant insurance legislation is not, in terms of exclusions and the protection of injured people, as robust as the UK Road Traffic Act 1998 and permits insurers to reject third party claims if, for example, the vehicle involved was not being used by a named driver. Continue reading