It's been a busy year for the Forum of Insurance Lawyers (Foil) and selecting any particular area of activity for comment is quite difficult. However, one topic is worthy of particular note.

The introduction of conditional fees for the use in personal injury actions as a substitute for legal aid had been anticipated for some time.

The mechanism of regulations and rules for their introduction, and consequent lack of clarity in their application, has caused a level of confusion rarely witnessed in the civil justice system. Claimants' lawyers found it difficult to advise their clients, defendants' lawyers struggled to give advice with any degree of certainty to their general insurer clients and general insurers grappled with the consequences in relation to reserving and pricing.

Through all of this Foil established dialogues with the various stakeholders and firmly presented the arguments and proffered potential solutions to some of the areas of interpretive disagreement.

The advent of conditional fee agreements, with the consequent expansion of claim farming and TV advertising, is clearly fuelling a claims culture which is probably of concern to us all.

Therefore there is still much to be done before we have a funding system that provides access to justice coupled with fairness to all parties while retaining the concept of proportionality.

One aspect that has not changed in the short term is in relation to discount rates, as the Lord Chancellor has still not prescribed a rate. However, to a substantial extent the uncertainty has disappeared, as cases are proceeding to settlement using the guidelines laid down by the court.

Perhaps of greater interest and importance in the longer term are positive developments in the field of rehabilitation and the wider utilisation of structured settlements. Foil played a significant role in the establishment of the Code of Best Practice, which is helping to expend the use of rehabilitation in the personal injury claim process.

There remains a long way to go before rehabilitation becomes as ingrained in our culture as the acquisition of cash payments. Foil's continuing contribution to the process is essential.

  • Ashton West's findings on Foil are published in its directory, available from