This is no joke or nuffink

This is no joke or nuffink

On behalf of “The Management” may I request your immediate payment of royalties for the use of a certain photo in your magazine?
You will understand that what wiv the Christmas post an' all we cannot accept no cheques or nuffink, instead we will be sending our man, ‘Appy AP, round to collect pronto like.
An' whilst talking of ‘Appy, he 'as suggested that we amend the membership rules of our club. So now we will be requesting payment of a small insurance, we'll call it IBRC mk2, you know, like our Jag MkVlll, but wiv diff'rent letters. In return for this small payment you can then come into our club where you can meet “Da Boss” and ‘is chums as they associate wiv their mates.
Now you just wotch it when you're in The Club as round the back is where the nasty stuff ‘appens. Cos like with a lot of business we've ‘ad to sublet some rooms and it's “round the back” that you'll find “Da Boss” talking wiv his mates wot's just collected your insurance. And those wot won't play ball wiv the insurer will soon find them being spoken to by “Da Boss”.
Now ‘e won't always call direct, like, there's this moll of ‘is, nice girl, blond ‘air, big smile. If you get a call from ‘er wotch it cos “Da Boss” may be near by, so you gotta wotch wot you says.
Anyways up, if you keeps your nose clean, and don't go treading on no toes you'll be welcomes to join our little money making scheme wot's we call Beady Eye. This is also an insurance but it collects off other punters and if you's is good you can ‘ave a cut of the profits. Oh, an' a word in your shell-like, don't go asking “Da Boss” ‘is real name as it get's ‘Appy anxious.
Now you's just run along now and be a good boy and pay yours dues, we wouldn't wont no accidents, not wiv your insurance, would we?
Ian K Mantel
Manor Insurance Services, Hastings

.Not the right line

The Forum of Insurance Lawyers (Foil) has indicated that it has given insurers the opportunity to take a hard line on non-payment of after-the-event insurance pre-proceedings. This, in my view, is contrary to the government's objectives of making justice affordable to all. This was a point that was specifically addressed in The Lord Chancellor's Department consultation paper (Conditional Fees: Sharing The Risks of Litigation ) of February 2000 and, in particular, at paragraph 76 the government gave an explanation on policy:
It has also been suggested that the client should not enter into an insurance policy until all the steps under a pre-action protocol had been taken and a response received from the opponent, because this would prevent the premium being assessed at a point where the extent of the risk could be uncertain and hence over-estimated. Limiting the ability of a client to recover premiums only on insurance policies entered into at such a late stage in the proceedings would mean that in the vast majority of cases that settle early, no premium would be recoverable. That would seriously undermine the government's policy. Without recovery it would often be uneconomic for claimants seeking small damages or making no-money claims and for defendants to take out insurance at the outset. That in the government's view would impede access to justice unnecessarily.
That right to challenge the insurance premium should only be successful if the opponent can demonstrate to the court that the choice of cover was wholly unreasonable and generated excessive costs. In that event the court would be able to reduce the amount recoverable from the losing opponent. By “wholly unreasonable” and “excessive costs” the government means a choice and cost that no reasonable person would think it appropriate respectively to make or pay. The purpose of setting so tough a test was to preclude the court having to decide between insurance arrangements which are marginally different.
There should be no doubt that after-the-event insurance premiums should be recoverable pre-proceedings, providing the cover was not wholly unreasonable and/or generated excessive costs. When deciding on the reasonableness of a premium claimed, the availability and accessibility of alternative products to the one chosen can be considered and treated as a relevant consideration.
The decision of insurers not to pay a reasonable after-the-event insurance premium pre-proceedings is not only, in my view, in direct conflict with government policy but, in addition, will lead to considerable satellite litigation and impede justice. Indeed, this stance is having a dramatic effect of the cash flow of certain practitioners who have undertaken a large volume of CFA's with insurance to protect the claimant in the event that the claim is not successful. Indeed, many practitioners are refusing to undertake claims on that basis because of the threat or, alternatively, ensuring no insurance is taken out alongside the CFA thus leaving claimants fully exposed.
Paul Mitchell
Paul Mitchell Consulting Limited

Raising a chuckle

Your correspondent, L Kendall of, really raises chuckles from the entire legal profession, yet unfortunately is probably endorsed by the entire insurance industry.
Where do you all think your business comes from and why has it evolved? Does anyone ever consider for one moment that if it were not for us lawyers there wouldn't be a liability insurance industry. Indeed the real culprit was a certain mollusc, not a lawyer, that found its way into Mrs Donoghue's bottle of ginger ale. Mr Stevenson did not take sufficient precautions to avoid the risk of this trespass by a lowly snail and was therefore responsible for Mrs Donoghue's illness.
Similarly, in Kendall's example of the individual who was injured when she twisted her ankle while standing on a dead branch during a paintball session, the operator failed to take sufficient precautions by ensuring that foreseeable hazards were cleared from the area.
Kendall fails to appreciate that if the boundaries of liability appear to be stretching, it is not due to the lawyers bringing the cases. It is entirely in the control of the insurers paying the compensation and the courts which decide upon the issues of liability. I, like many other lawyers, despair at those cases that are allowed to succeed when it is a clear case of an individual's failure to take personal responsibility for their own actions. However, it is not the place of a lawyer to arrive at these conclusions at the outset of a case. Let me address the problem from the stance of a criminal lawyer (that is someone who represents criminals – before you all start jumping to your preconceived views of our noble profession).
If Kendall, God forbid, ever committed a crime, does he really believe that his legal representative should listen to his evidence and then decide for himself whether he was guilty or not? Yes, I know it seems an extreme example to use but it displays the principle adequately. It is not the place of any lawyer to decide on the outcome of any claim which has reasonable prospects of success. The risk process continues after the event and once more lawyers have created yet another product for the insurance industry.
I really wish I had as efficient rainmakers in my profession as the insurance industry appears to have in mine.
In reply to your final question “Where will it end?” – well, you better wish it doesn't, for both our sakes. Happy Xmas in the meantime and don't be bumping into Santa, I don't think he is insured.
Diarmuid McKeown
The Motor Accident Solicitors
St Albans and Armagh

Insurers have the answer

I refer to the letter from L Kendall relating to solicitors (December 14), but I believe that the answer to the problem lies fairly and squarely at the doors of insurers. If there were no grounds for the claim, and on the circumstances it would seem that might be the case, then why did the insurer settle? As they settle these matters then it only encourages further claims to be made.
I have recently been involved in a professional indemnity claim against ourselves where we were alleged not to have passed on the appropriate claims experience to the insurer. I was quite satisfied that we have acted correctly but the PI insurers wanted to settle seven days before the hearing on a similar basis to Mr Kendall's case because of costs. I would not agree to this and it finished up that the matter went to a hearing with the claimant withdrawing their claim after the first witness had appeared. I am sure that the basis for the claim was merely trying to obtain an offer from us which would have been successful, as my insurers were willing to compromise. Insurers have got to take a harder attitude, run cases to court, if they are satisfied that they are groundless and if they win more than they lose, then it will make solicitors think twice before embarking on trivial claims.
It has to be borne in mind however, that insurers over previous years have had a very easy ride by a lot of people with whiplash injuries not claiming while continuing to suffer the pain caused by a negligent third party. As with all things there is a balance and I feel that more people are now getting what they are entitled to. But there is a element in society that is taking advantage of the situation and this can only be rectified by insurers resisting these claims and looking at the merits of the claim, not the economics.
David Miller
senior partner
David Miller Insurance Brokers

Dog's dinner in Commons

The points I sought to make at the House of Commons ABI Parliamentary Reception were that the government was making a “dog's dinner” of retail sales regulation, potentially confusing the public who have been led to believe that in the future all financial products would come under the common “Best Advice” FSA regulation: that the Treasury had determined the GISC would be the single regulator, but without thinking through the different interests of the major providers of insurance products and their agents versus independent brokers/advisers; that Rule F 42 requiring insurance company members of GISC to withdraw agencies from any broker/adviser not a GISC member, was inappropriate, particularly where the member was regulated by the FSA already. If the GISC is to be the sole regulatory body, its brief from the Treasury will need to change to accommodate the different regulatory requirements of independent broker/advisers versus the main insurance product providers and their agents. The point I made as regards the GISC staff, was that ABI members should not be critical personally of those who are addressing with good will what the Treasury has prescribed, but rather lobbying the Treasury to address satisfactorily requirements and interests of independent advisers.
Howard Flight MP
Shadow Economic Secretary