Motor - DAC Beachcroft

Motor

There is growing evidence that claims frequency is back to pre-Jackson levels and beyond, both in motor and elsewhere. It is now increasingly clear that rehabilitation costs are growing as a claim component, both for physiotherapy and for CBT.

Credit Hire continues to cause concern, plus there is growth in the use of credit repair. We ran an industry conference on this topic in January 2016. We are also seeing a greater number of claims for chronic pain, often from relatively minor trauma.

ATE purchase is still rife and claimants are being charged the maximum success fee of 25% of damages by those law firms. The failure of the SRA to enforce the referral fee ban properly or at all has helped fuel this model.

The creation of MedCo has led to intense activity by medical agencies and related businesses and a growth in claims for rehabilitation costs, as pressure on RTA fees and medical reporting costs intensifies.

There are likely to be further considerable changes in the next three years around the right to general damages for minor RTA soft tissue injuries, an increase to the small claims limit, a further widening of fixed fee arrangements and greater regulation of CMCs and CHOs.

We will work with, consult and support our clients to understand the impact of the changes, and we will look to identify increased or new activity, for example:

  • An increase in exaggeration or fraud to try to move cases out of the SCT;
  • An increase in psychological claims, treatment/rehabilitation;
  • An increase on general damages (pressed by claimant lobby) on higher value claims;
  • Changes (as per Scotland) to fatal accident claims;
  • Increased claims activity in Scotland, Northern Ireland and Eire where the changes will not apply.

What we do

We are leaders in providing motor claims services and have over 30 years' experience of developing a bespoke offering for our clients in this field. Our stated strategic intent is to ensure we have commercially focused pragmatic settlement strategies, which align our litigation philosophy to our clients' key objectives of managing, controlling and reducing indemnity spend and cycle times, whilst maintaining technical excellence.

Within motor services we have a number of identifiable "products" that have been developed to address a specific client need, requirement or expectation:

  • Motor Injury: Covering both volume and high value/complex and catastrophic injury claims;
  • Credit Hire: Dedicated teams helping clients reduce indemnity spend, understand what strong credit hire performance looks like and developing effective "Know Your Opponent" strategies for all CHOs;
  • Motor Prosecutions: A specialist national team of criminal lawyers providing 24/7 representation across the entire range of motoring offences;
  • Motor Fraud: Our Counter Fraud Team works closely with our specialist Intelligence team to analyse cases and quickly identify fraudulent behaviour at the earliest possible juncture;
  • Claims Handling: We have experience of successfully implementing and handling a variety of different pre-litigation claims outsources, from long-term strategic arrangements where we handle both first party and third party claims and run an imprest account, to periodic overflows or tactical outsources where we help our clients manage spikes in claims volumes by taking over conduct of the third party claim, or a discreet part of it.

What we are known for

Our specialist product approach

  • We have specialist teams to handle claims according to their expertise: motor, specialist issues, regulatory, and criminal proceedings, as well as catastrophic loss – this ensures the most cost effective handling. We work with our clients to identify new products and areas of focus. For example, we were the first law firm to identify and set up a dedicated credit hire fraud team.

Our technical strength

  • Many of our lawyers are ranked No. 1 in Chambers UK and The Legal 500, and we have received many accolades including Legal Business' Insurance Business of the Year 2015, and Insurance Fraud Awards Winner 2015. We ensure the best people are allocated to every case, which means we can leverage our technical know-how and expertise to optimise case outcomes and results.

Our client portfolio and relationships

  • By virtue of our client base (we act for 18/20 UK Insurers) we have a unique insight into the insurance sector. Specifically we can leverage data and use it to supply market insight and market benchmarking.

Our industry access and insight

  • No other law firm is as actively engaged as we are on Civil Justice Reforms, government engagement and wider stakeholder involvement. We are the only official legal partner to the ABI. We are able to leverage this for our clients' benefit by bringing insight on emerging industry issues and shaping the future reform programme.

Market consolidator and leader

  • We have a proven track record of understanding our client's needs. We were, for example, first to market in both Scotland and Ireland to provide cross-border legal services. We are a market consolidator and a destination business for teams of lawyers (e.g. Morgan Cole acquisition).

Our experience

Motor Injury

Example

The Claimant presented a claim for a permanent lower back injury involving a severe disc prolapse secondary to ligament tears caused by the index accident. The Claimant's orthopaedic expert provided a prognosis of a permanent disabling injury, such as to permanently limit employment prospects and require on-going aids and assistance.

The claimant's total advanced claim was in the region of £342,000.

Significant and forensic investigation together with appropriate expert instruction resulted in exceptionally favourable outcome for AXA. The Claimant received £17,500 in damages, which reflected savings of £324,500 against the claim presented.

Example

The Claimant issued proceedings against AXA directly pursuant to the European Communities (Rights Against Insurers) Regulations 2002 immediately prior to the expiry of the Limitation period. We argued that the Claimant did not have a direct cause of action against AXA, as there was no evidence it insured the tortfeasor. Furthermore, the Claimant was unable to amend proceedings to claim against the alleged tortfeasor as the Limitation had expired.

The claim was struck out at trial with costs recovered resulting in total savings of £62,654.

Motor Prosecution

Example

The Insured entered a roundabout having failed to see a cyclist and she ran over him, causing him serious, multiple fractures. The Insured was prosecuted for an offence of driving without due care and attention.

The Insured was extremely anxious and upset at the prospect of a criminal prosecution and a conviction, but we were able to secure a very good result for her (4 points and a fine) and she was very happy with the service she received. She sent an email of thanks with the following comments: "You have both provided a huge amount of help and support to me, and I am not sure what I would have done without the both of you. I know for you this was run of the mill, but as you can imagine this was a hugely distressing situation for me but made easier by both of you."

Example

This is a matter where the Insured, a very elderly driver, was charged with an offence of causing death by careless driving. She was in collision with a pedestrian who was then run over by a vehicle travelling behind the Insured.

Initially, the prosecution case was that the Insured was careless in failing to see the Deceased. After our scrutiny of the evidence and the inherent weaknesses in the prosecution case, the prosecution changed tack and said that their case was in fact that the Insured was careless in not failing to stop immediately, as had she done so the driver behind the Insured may not have then run over the Deceased. We made an application at the crown court to dismiss the case, which was successful despite the prosecution's objections, and their application to amend the charge to simple careless driving.

This was an extremely difficult case and we were conscious of the effect proceedings were having on the Insured, whose health deteriorated rapidly over the course of the proceedings as a consequence of the stress that she was under. We managed the expectations of the Insured's family, who were understandably extremely anxious for their mother and they needed constant contact. Both they and the Insured were delighted with the final outcome, as evidenced from an extract of an email of thanks below:

"Thank you both for all you did today and over the past months ... Mum looked so much better when we got home, the stress had lifted and it was very noticeable. I only hope that you both felt as elated as we all do now, it was such a miraculous outcome. Words are not nearly enough."

Large Loss and Catastrophic Injury

Example

The Claimant sustained a very severe head injury in a road traffic accident, in which liability was admitted. We ensured the successful continuation and management of ongoing medical treatment funded by the local PCT, as a result of attending multidisciplinary team meetings at the Claimant's rehab unit. This enabled a successful transition to a more specialist unit, again with funding secured in full from the local PCT as opposed to being paid by insurers.

Whilst the Claimant was in this unit, medical evidence was obtained with the goal of the parties getting around the table for a JSM. A very significant claim advanced on behalf of the Claimant of just under £6 million. Ultimately, it settled for a lump sum of £1.180 million with PPO's of £90,000, increasing to £110,000 towards the end of life. The Claimant lacked capacity. Proceedings issued simply for the case to be approved. The case settled at JSM within two years and was approved by the Court two months later. PPO administration dealt with by us in addition.

Example

The Insured collided with a 78-year-old pedestrian during the hours of darkness. As a result of the accident, the Claimant was left tetraplegic and suffered a substantial brain injury. He lacked capacity to litigate and to manage his affairs.

Our CAT team was instructed to coordinate enquiries in conjunction with the Motor Prosecutions team, and to deal with civil liability and quantum issues.

Our Motor Prosecutions team was instructed to represent the Insured in relation to possible careless driving charges.

Statements were submitted to the police on behalf of the Insured and his passenger. Charges were ultimately not pursued against Mr Pomeroy.

We obtained accident reconstruction evidence, as there were significant arguments in relation to the visibility of the pedestrian in the road and contributory negligence.

Early discussions took place with the Claimant's solicitors; rehabilitation was put in place under the Rehabilitation Code, which made full use of statutory services, and a route map was agreed whereby the parties would obtain core medical/expert evidence with a view to an early JSM, even if every last detail of the claim could not be quantified at that stage.

The JSM took place on 27 October 2015 (just under 20 months post-accident). Based upon an agreed 50% liability split, damages were agreed at £450,000 plus a PPO of £100,000 p.a. There was a considerable difference of opinion between the spinal experts on life expectancy, which meant that a PPO was the only realistic way of settling the claim when the Claimant was a protected party, and approval from the Court needed to be obtained. In view of the Claimant's age, the PPO was more attractive to insurers than would otherwise have been the case and provided some safeguard in the event of premature death.

Example

The Insured's driver received brain injuries when the HGV he was driving, which was loaded with cardboard, overturned as he attempted to navigate a roundabout. The Claimant alleged he was unable to work as a result of his injuries and the case was initially reserved at £733,000.

Allegations against the Insured were that the load had shifted, in breach of the Health & Safety at Work Regulations, causing the vehicle to become unstable.

We obtained supportive expert evidence from a forensic investigator commenting on the vehicle's tachograph, and the loading system, which suggested that the vehicle had been loaded appropriately.

The Claimant was reluctant to attend appointments with our own medical experts, which were used to put pressure on him. The matter subsequently settled for £75,000 plus CRU benefits and costs.

Example

The Claimant motorcyclist alleged that a lorry driven by an employee of the Insured pulled out in front of him from a junction, causing him to receive significant brain injuries, as a result of which he lacked capacity. The initial reserve was £1.7m.

Liability was disputed on the basis that the claimant was speeding, and that he had ample time to steer behind the lorry, but instead chose to take his hands off the handlebars and make an obscene gesture at the lorry driver. Supportive witness evidence was obtained.

Expert liability evidence, including analysis of the lorry's tachograph was obtained. In addition, there were a number of procedural issues to resolve, including the service of an amended Claim Form outside of limitation. Our view was that primary liability was likely to attach, but this was kept open for tactical reasons

Medical evidence was also obtained from our various experts, which was not wholly supportive of the level of difficulties alleged by the Claimant. The schedule was pleaded at £2.8m plus provisional damages. The matter settled at a JSM in July 2015 for £800,000 and the settlement was subsequently approved by the Court.

Costs were settled by external costs draftsman for £285,000 representing a substantial saving against the overall reserve.

Counter Fraud

The Counter Fraud team lead by Catherine Burt successfully defended the Fingland's case recently which lead to us winning the Fraud Team of the year award. There were a total of 26 claims that were pursued and only one proceeded to trial. Insurer's total reserve for all claims was around £750k.

Having successfully defended this claim, which went to trial we were awarded costs (our total costs were in the region of £120k).

Previously, the bus inspector who was employed by Finglands and the Third Party driver had been convicted. There was very clear video footage of the incident which leads us to successfully defend the claim which was pursued by Nesbitt Law.

Credit hire

Umerji V Khan & Zurich [Court of Appeal Civil division, 25th March 2014] where we successfully appealed a first instance decision that impecuniosity did not extend to periods of hire. The judgment has considerably assisted insurers defending credit hire cases where significant delays in repairs or total loss are involved.

We had significant strategic input in Stevens v Equity Management [2015] EWCA Civ 93, and were retained by the Defendant Insurer to provide strategic advice even though we were not on record. This case resulted in the law governing basic hire rates changing substantially, with the lowest reasonable rate now being the applicable rate awarded if a claimant is not impecunious.
We successfully ran Lawson v Mullen, Newcastle County Court, 15 May 2015 to appeal, where it was held that rates do not have to come with a £ nil excess. This was the first case ran to appeal on this argument, and has resulted in considerable savings for insurers.

What our clients say

"DAC Beachcroft is seen to be setting the benchmark when it comes to Defendant Personal Injury work. It has a dominant presence across the whole country. DAC Beachcroft is a firm that you can rely upon to adopt a common sense approach to sorting things out." Chambers UK Legal Directory 2014

"They are very strong technically – nothing seems to be beyond their capability and they are always responsive, engaging and professional." Chambers UK Legal Directory 2015

"Sara May has extensive experienced defending maximum severity catastrophic injury claims. She heads the Large Loss Practice Group from the Birmingham office and is routinely retained by insurers to advise on claims valued in excess of £1 million." Chambers UK Legal Directory 2016

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