Saturday, 10 December 2011

A real hustle

If you've ever watched The Real Hustle you've probably been amazed at some of the things that people can get away with if they have the confidence to try. Who dares wins?

The latest scam from liability insurers is a bold attack on the fixed costs schemes that presently apply to a number of categories of personal injury claims, starting with low-value road traffic - or “Portal” - claims.

This comes on the back of the announcement of a ban on referral fees for which of course insurers quickly voiced support, hoping to distract attention from the extent of their sly profits that were suddenly exposed to the daylight.

Now they seek to turn it all to their advantage by arguing that since some, not all, claimants’ solicitors will no longer be paying referral fees to acquire the business, the fixed costs should be reduced.

Which of course will produce a saving for insurers – on ALL claims, not just those that might have been bought by payment of a referral fee.

That fact demonstrates where the logic of the present argument crumbles. It won’t just be lawyers who previously paid for claims continuing to run them in the future. There will be all the others, like me, who never did and whose overheads don’t change as a result of the ban.

Those overheads still include other forms of marketing – areas in which many firms who previously purchased from claims management companies will find themselves spending similar amounts in the future as they look for alternative business leads.

So, the insurers’ point is a duff one regardless of how the original fixed-fee deal was conceived and structured.

Perhaps that’s why we are hearing and reading the contention that the existing scheme factored in an allowance for referral fees. The MOJ will quickly swallow it where there is no resource or political will to challenge the insurance industry.

Representatives of respectable and fair players such as APIL are quite clear in their account that referral fees formed no part of the Portal fees deal of which they were one of the architects, along with insurers. Why ever should it have done?

The costs were calculated having regard to the amount of time required to run the claims and the expense of it.

That has proved inadequate, many will say, because of the antics of insurers looking to exploit loopholes and push the bounds as they so often do. No wonder they say the system works well – pity nobody has seen them reduce levels of premia as a result.

One comes to expect all that but this latest assault is a serious threat to justice and the MOJ needs to wake up to it. Bear in mind that the insurance industry wants to extend these lower cost claims environments to higher value and more types of injury claim.

If it sounds too good to be true, it probably is.