The Collective Conditional Fee Agreement (CCFA) Regulations came into force on November 30, 2000. So what does that mean for the insurance industry? The regulations deal with collective agreements and enable bulk legal service providers to enter into one CCFA with their funder rather than entering into separate conditional fee agreements (CFA) with each client in every case.
The CCFA need not refer to the specific proceedings. It will provide for fees to be payable on a common basis in relation to a class of proceedings or, if it refers to more than one class of proceedings, on a common basis in relation to each class, whether or not the person liable to pay the fees under the agreement is the client of the legal representative.
For example, the agreement could be between trade union solicitors and the union which is funding the case – even though the client for the purposes of the proceedings is the claimant employee.
In order to be enforceable, the CCFA must satisfy provisions that are similar to those set out in the Conditional Fee Agreements Regulations 2000 that govern individual conditional fee agreements. The comparable provisions are to be found in regulations 4 and 5.
Regulation 4 states that a CCFA must specify the circumstances in which the legal representative's fees and expenses or part of them are payable and ensure that:
Regulation 5 states that if the CCFA provides for payment of a success fee, the legal representative must prepare and retain a written risk assessment in every specific proceeding stating the assessment of the prospects of success, the percentage increase that will be claimed and the reasons for setting the percentage increase at the level claimed.
The Costs Practice Direction applies to any CFA which provides for a success fee.
Claimant solicitors who have entered into a CCFA are therefore still be obliged to:
Some bulk legal service providers are already serving notice that existing claims will in future be funded under a CCFA.
Insurers should not pay a success fee if the case was funded by a CFA before April 1, 2000. If they do not know the basis of the previous funding arrangement and the case was begun before April 1, 2000, they should ask how the case was funded.
Insurers should also seek confirmation that availability of before the event legal expense insurance was discussed with the claimant before the success fee was agreed. If the client's claim could have been funded by a before the event insurance policy, insurers will be in a strong position to argue that a success fee should not be paid.
And they should put opponents on notice at the outset that they will ask the court to consider the claimant's retainer at the end of the case if the information is not given voluntarily.
The question of access
The Data Protection Act 1998 repealed the majority of the Access to Health Medical Records Act 1990 in relation to rights of access to the health records of living individuals. Access to health records of deceased patients is still governed by the 1990 Act.
Section 7 of the Data Protection Act 1998 gives a “data subject”, which allows a defendant in a civil personal injury claim access to manual health records, automated health records or a combination of both.
The Data Protection (Subject Access and Fees and Miscellaneous Provisions) Regulations 2000 made under the Data Protection Act 1998 set the fees that can be charged for giving access to health records.
It is intended that the same fee will ultimately apply to both manual and automated records but transitional arrangements apply to all requests until October 24, 2001. The transitional arrangements set a higher fee where the data subject is supplied with copies of manual records. The current fee arrangements are as follows:
The transitional provisions apply only to requests made prior to October 24, 2001. After that date it is expected that the £10 maximum fee will apply to providing copies of all health records.
The Access to Health Records Act 1990 still applies in relation to requests for access to health records of deceased patients. The maximum fee is £10 but additional charges can be made for copying, handling and postage.
The advised period for compliance with the request is 40 days from the date of receipt of the written request and the appropriate fee.
Although the legislation is complex it should lead to cheaper and simpler disclosure of records because additional fees cannot be charged for copying, handling or postage.
Potential let-off for compensators
The Social Security (Recovery of Benefits) Act 1997 requires compensators to repay recoverable benefits received in respect of personal injuries. Repayment of benefits rightly follows where the compensator is able to offset benefits against heads of damage and the period for which benefits have been paid corresponds to the injury period.
However, practical application of the regulations has caused concern to compensators in cases where the DSS requires repayment of substantial benefits despite the fact that the claimant has been found to be malingering. While some Appeal Tribunals have been prepared to adjust the repayment, others have been unwilling to revisit or to look behind the original decision to award benefit and insisted on repayment in full. The practice is to be reviewed shortly by a Tribunal of Commissioners that has been appointed by the commission to consider an appeal under Section 11 1 (b) of the act.
They are to decided on the issue whether, in relation to the question whether benefit has been paid otherwise than in consequence of an accident, a compensator should be entitled to argue that benefit which has been paid ought not to have been paid and so should not be brought into account.