Foil president Dan Cutts on his term so far

Having been Foil president for just over a quarter of my term now, it is becoming increasingly evident that the degree of political, judicial and process uncertainty that we have had on a number of issues recently is hampering the industry’s ability to move forward and respond to potential changes, and we need to draw lines under such issues far more swiftly.

True, we have had some progress in a number of areas. The Government has eventually decided not to overturn the Lords decision on pleural plaques, something that should (and could) have been resolved much sooner. However as Foil has pointed out previously, this does raise the prospect of some claimants seeking to forum shop in Scotland – another issue that needs clarity, and quickly. In passing, we welcome Jack Straw’s suggestion of a working group to consider whether any provisions in relation to re-action behaviour are needed on mesothelioma cases. The creation of a pre-action protocol in this area is something that we’ve long campaigned for.

In terms of other legal developments this month, perhaps the least surprising news is that the Ministry of Justice’s (MoJ) new motor claims process has been put back till the end of April.

The one aspect of this that still troubles me is the potential for satellite litigation. I hope that there is very little arising out of the process changes, as all interested parties have been included at every stage of the development of the process. However, my concern is around the delay between the issue giving rise to satellite litigation and its ultimate resolution. In traditional litigation any issues are decided at the point at which the issue arises. However in the new process, any cases involving a dispute (e.g. with issues over completion of the claims notification form, interim payments or conduct issues) will drop out of the process.

There will then be delay as claimants prepare and issue conventional proceedings. Those proceedings will progress to resolution and only at any subsequent costs hearings will we get a view on the issues raised. I have suggested to the MoJ that such cases be identified early, fast tracked, and any guidance fed back into the process at the earliest opportunity. Only this will give us the certainty that all who take part in the process are entitled to. At the same time, Foil will be asking members to identify issues and behaviours that we come across and will share these with the ABI.

Later this month we are hosting our first conference of the year and this focuses on the non-financial impact of claims on society. It promises to be a lively debate on issues of the compensation culture and risk-averse behaviours. Speakers from insurers, the public and private sector and unions are taking part, so I will be sure to update you on proceedings next month.

Dan Cutts is president of the Forum of Insurance Lawyers (Foil) and director of insurance at Weightmans.