Tuesday, 26 July 2011

Portal of horrors

I see repeated mention of proposals by liability insurers to extend the scope of the Portal, and reduce the fees too. Will the MOJ fall for this one I wonder?

Fellow personal injury claimant lawyers know what I am talking about.  For those who don’t, this is a web-based system of exchanging information between claimants and insurers, currently restricted to road traffic accident claims with a value of less than £10,000.

The idea was sponsored by liability insurers with the insistence that the technology would cut costs and speed claims to everybody’s benefit.  The big plus (?) for claimants’ lawyers was that admittedly low fixed costs would be payable by instalments rather than at the end of the case.

It might have worked in theory, though many of us knew full well what would happen.

The fact is it has been a nightmare.  The launch was delayed because of technical problems.  When it is not beset by functional issues, it doesn’t work because insurers play their usual tricks.

Breaking out of this system is possible but it’s not clearly mapped and the potential costs, or penalties, of doing so are disproportionate.  So you are virtually locked in.

I and others say the proposal to extend it to much higher value road traffic claims and other types of claims is disastrous news.  If you want to understand why, let me tell you at first-hand a true story about how the portal works. It goes on a bit – but that’s the nature of this beast...

This wicked tale features a very large insurer, a chap called ‘Lakshami’, numerous unidentified chums of the same name and a Manchester firm of solicitors beloved of this insurer for attacking and delaying claims for costs by (successful) injured claimants’ solicitors.

It also features the claimant, our victim here, who in case you don’t pick it up as the story unfolds happens to be my employee.  In true Star Wars tradition, we’ll feature the earlier part of the saga in a little article about claims capture during the coming days.

This is how the claim runs after we receive instructions from my slightly pranged employee one day at the beginning of August last year: -

5 August 2010 - Detailed claim uploaded to the Portal.  Insurers have 15 days to respond.

19 August 2010 - We become aware that these insurers, as others, are exploiting a loophole that they have found relying on what is referred to as an “Article 75 Decision” to allege that they have up to 29 days to deal with (i.e. delay) a claim.

23 August 2010 - Insurers admit liability and the Portal shows on this date that the claim is awaiting payment. 

18 November 2010 - Medical report and prognosis received from claimant’s doctor and uploaded within what is known as Stage 2 of the Portal process.  Insurers have 15 days to respond.

30 November 2010 - On the fourteenth day, enter Lakshami, asking for payslips for the three months prior to the accident.  We provide and wait a little longer...

9 December 2010 - Insurers make a partial offer through the Portal.  In the course of doing so they ask for payslips on headed paper.  Strange, since the payslips originally provided were....on headed paper.

The same day, we telephone and speak to someone called “John”.  He looks at the file and advises that they have received all the information they require and he cannot understand why the request for payslips has been made. Well done, John.

17 December 2010 - Lakshami telephones.  He has received the payslips and wants to check who is the claimant’s employer.  We confirm that it is us – as, er, shown on the payslip!  The next request - they want our contact details?! 

Same day (assistant frustrated at this point, understandably)  I telephoned, listened to music for the best part of five minutes and eventually spoke to an operator whose incomprehensible name began with “G”.  He couldn’t help by putting me through to the Lakshami who had just telephoned because......there were too many people called Lakshami.

23 December 2010 - We speak to Lakshami (the right one, allegedly) again and ask to know the present position.  He says that he needs the employer’s address.  We ask him why that is necessary but he can’t tell us.  He will ask his case manager and telephone us.. 

30 December 2010 - Lakshami calls in my assistant’s absence and leaves a message with a secretary.  He wants to know how long she was off work and what she is claiming for loss of earnings...

4 January 2011 - My assistant returns the call to Lakshami.  She points out to Lakshami that all the information relating to loss of earnings was included in the schedule of loss that was filed at the beginning of the Stage 2 process [18 November].  Apart from that, they must know how much she is claiming because....in the course of their own partial offer they had quoted the amount claimed and asked for payslips. 

26 January 2011 - After exchanges of further offers on both sides, we chase one of Lakshami’s colleagues about our latest offer.  The operator tells us that they have not received the fax but they had received an invoice from us on 20 January. News to us. We ask them what the invoice was for and the operator starts to read the fax that we had sent on 18 January......we observe that this was the letter we were chasing.

Same call - we are then informed that... they need documentary evidence to support the loss of earnings claim!!  Eventually, we get through to Lakshami - the same one who has dealt with it before.  He has not considered our last offer yet but he will talk to his claims manager about it and telephone us 

18 February 2011After a period of time during which our particular Lakshami apparently leaves and there is much application of head to brick wall about the meaning of “global” we are told that a cheque for damages has been issued and the file has been sent to specialist solicitors in Manchester to deal with the costs.

21 February 2011 - Specialist solicitors in Manchester write to advise that they are dealing with the costs.  We write and ask them why when this is a Portal claim and fixed costs are prescribed by court rules. 

23 February 2011 - James telephones. He wants to check that they have all the disbursement vouchers.  Yes that ONE bill from the doctor for £50 is “all the disbursement vouchers”.  He says a cheque for part-payment of the costs is on the way but they just need to verify the success fee (this is worth £120 by the way).  Do we have a conditional fee agreement in place?  Yes - we confirmed that on the initial form submitted to the Portal at the beginning of August last year.  James will just have to check that with his manager..

24 February 2011 - James calls again.  He asks again about the success fee.  We tell him that we spoke to him yesterday about this.  He then announces that insurers no longer have a copy of the initial form that was sent to them via the Portal.  He wants another copy.  He also asks again about the disbursement vouchers and we confirm that it is just the £50 that is being claimed. Yawn.

The same day James sends us an e-mail asking for all this information that his insurer client had six months ago.  We all fall about laughing in the office here at the fact that this costs specialist cannot spell his own surname correctly in his e-mail.

2 March 2011 - After we send further copies of the information we sent at the outset through this highly-efficient portal, we get the balance of costs paid.  One wonders how much the costs specialists in Manchester earn for effectively triple-checking less than £200 worth of the prescribed claim for costs?

The answer to that last question is that it doesn’t matter to this insurer and others.

What matters is that however much it costs they make it ever more difficult for innocent victims of accidents to pursue compensation, one of the key strategies being to drive people who know how to deal with them off the playing field because it is economically insane to be in the game.

Cynical? Remember that we’re dealing with people who think it is OK to trouser secretly hundreds of pounds for selling their own policyholders’ claims, and then blame rising costs on the lawyers who champion the rights of victims. 

Wednesday, 13 July 2011

Bribery - every step of the way..

The Bribery Act (BA) creates offences of bribing a person to induce or reward them to perform a relevant function improperly and, basically, being the bribee with the roles reversed.

The definition of a relevant function is interesting.  It includes “any activity connected with a business, trade or profession, any activity carried out in the course of employment and any activity carried out on behalf of a body of persons (corporate or unincorporated)”.

The second limb of the definition is that the activity is performed with one or more of the following relevant expectations: -

  • It will be performed in good faith
  • It will be performed with impartiality 
  • That by virtue of performing the activity the person doing so is in a position of trust

So, improper performance of a relevant function would be a failure to perform it in line with the relevant expectation.  The test for whether performance is improper is what a reasonable person in the UK would expect.

What about the position of anybody introducing a lawyer to perform, for example, personal injury or conveyancing services in return for a fee?  What about the position of the lawyer?

Can it possibly be said that such activities don’t fall within one, more or indeed all limbs of the primary definition of a relevant function?

What is the saving for such activities? Is it that nobody has an expectation that this activity will be performed in good faith, or that it will be performed with impartiality or that the performer is in a position of trust?

Let’s put it another way.  Is the introduction from the estate agent to the lawyer who offered the highest referral fee immune from all this because the client knows that the referrer will act partially, in bad faith, to introduce to the highest bidder?
Is a reasonable person in the UK now resigned to the fact that their own insurers cannot be trusted and will act in that way? ("Utmost good faith" - ha!)

Does the essence of this legislation founder because the reasonable Brit is now hardened to the fact that in some parts of some industries people operate routinely on the basis of backhanders and not merit?
I looked at the Law Society’s guidance note for chapter and verse on referral fees to find...
  •  “BA is a consolidation of the previous law relating to bribery.  With the exception of the creation of a new corporate offence, the offences under the Act have not changed markedly from those previously in force”; and
  •  “There has been no implication that referral fees were illegal under previous legislation and therefore it is unlikely that such fees are illegal under the new arrangements.”
I don’t understand what “has been no implication” means.  I guess it must be that nobody has taken any notice of people like me who have suggested that referral fees are a form of bribery.

Perhaps what the guidance is saying is that not enough people have dared previously to suggest that referral fees amount to bribery and since the new law is just a restatement of the old law, er, that’s ok then.

The final word of caution from the Law Society is: 
  • “However, you may wish to consider how the introducer is obtaining work that is then referred to you. If the introducer is paying bribes to gain the work, this may, in certain circumstances, be seen as them paying a bribe on your behalf.” 

It's quite simple. It's bribery - every step of the way.

Wednesday, 6 July 2011

Laughing gas..

So...caught a glance at The One Show this evening and an article about fuel prices which reminded me to respond to a recent e-mail from British Gas.

BG has supplied my gas and electricity for a year or two since I switched to a fixed tariff that expired last month. I was invited to consider the new discounted deals available.

Having chosen Websaver 12 Dual Fuel, logged into my existing account, (taking the opportunity to inspect latest bills for both fuels through the links displayed).

Then completed order, confirming that current supplier of both gas and electricity is BG.

My acknowledgment tells me that my electricity account has been switched to the new tariff and that BG will now supply my gas too. It will take 4 - 6 weeks to make the transfer from my existing gas supplier....

...which is - and has been during three decades at this and earlier addresses - er....British Gas.

Am now waiting for the BG engineer to turn up and replace my gas meter, cancellation charges perhaps - and who knows what else.

Nitrous oxide perhaps?

Ha, ha, ha, ha, ha, er, ha....