More certainty for the injured

Q Looking forward, what are the main issues for the Association of Personal Injury Lawyers in relation to compensation and the insurance industry over the next year?

A First, the government is proposing a Compensation Bill. In the meantime, we also know that under the Better Regulation Taskforce initiative, the government and all interested stakeholders are looking closely at the way in which claims generally are handled.

It's not just personal injury claims, so there's likely to be some consideration of the claims handling process during that period.

And then finally, we see on the slightly more distant horizon the whole question of regulation of legal services, the results of the Clementi Review.

Q Do you think the insurance industry could do more to improve its handling of claims?

A We all recognise that there are a number of 'blockers', or 'blockages', within the claims handling process that need to be addressed. We're perfectly alive to insurers' desire to have claims notified to them earlier than they perhaps are at the moment.

Equally, we believe that the insurance industry is also alive to the problems that claimant representatives have in proceeding to such notification. This is, first, because of the detail required in the notification process under the pre-action protocols and, second, because of the need to deal fully, technically and comprehensively, with funding arrangements before even intimating a formal claim.

We welcome, for that reason, the government proposals published in mid-August for simplification of the conditional fee agreement (CFA) regulations, which provide a partial answer to the funding issues that have adversely affected relations between claimant representatives and the insurance industry over recent months and years. They're not a complete answer, but to the extent that they simplify the funding arrangement process, we can certainly see how earlier notification of claims to the insurance industry would be of benefit to them.

There are also issues, so far as claimant representatives are concerned, about the time it takes the insurance industry to take decisions on liability and also when such decisions are made and communicated, particularly when they lead to an admission, whether those admissions are adhered to or withdrawn. And the insurance industry is aware that we have some major concerns in that area.

What is quite exciting is the extent to which both sides appreciate the need to co-operate to address these issues in a constructive way. This is to the benefit of injured people, who will know where they stand more certainly, and is also to the benefit of the insurance industry, because its 'frictional' costs might be reduced.

Q Were you disappointed when the Department for Work and Penion's employers' liability pilots collapsed earlier this year because the TUC pulled out?

A We were actively supporting the development of pilot systems to see whether a different approach could be adopted to the way in which claims were handled, and we are still exploring this.

All concerned are anxious that the interests of injured people should be protected and should be at the centre of the process. But it is recognised that if at all possible that should be done in what we have sought to describe as a quicker and slicker way.

Whether there is any real prospect of [insurers' own pilots in non-unionised workforces] being successful, only time will tell.

It [the DWP pilot] was an interesting initiative. It came to nothing. If we can develop more comprehensive agreed ways to handle claims, that is probably more desirable than resurrecting a pilot in relation to one type of claim that represents only a small constituent part of the overall number of accident and disease claims that are pursued each year.

Q Do you think the insurance industry is doing enough to promote and utilise rehabilitation?

A That's a difficult issue to assess in terms of empirical evidence, because no research has been undertaken. The most important point about this as an issue is that it should not be seen to be part of the adversarial claims process. So it must not be hijacked by one side or the other.

It is about putting the injured person at the centre of the process in just the same way as health service providers put the patient at the centre of the process. It's not something that should, therefore, be owned by one side or the other, and should not have conditions attached to it.

It is about identifying in the same way as you identify what the medical needs of an injured person might be and addressing them in the medical treatment that you afford them.

So, we suggest that there is a proper neutral evaluation of the rehabilitation needs, and then finding the means to deliver them.

Anything that actively promotes the identification of injured peoples' needs for rehabilitation, and then delivers them must be in the interests of all concerned.

One issue identified by both sides is the need for earlier notification of claims to the insurance industry. But equally there is a need for early and binding determination of the insurer's position on the insured's liability.

And one of the concerns that we have there is that our researches have indicated that, although compensation ultimately is paid in a very high proportion of the claims that are intimated to the insurance industry, there is early admission of liability in only a small proportion of those cases, and that needs addressing. IT