Thursday, August 31, 2006

Fraud book

I've just finished writing a book called 'Fraudulent and Exaggerated Claims' with Damian Ward, James Heath and Stratos Gatzouris. It's now with xpl Publishing and should be out in the next month or two although it's already available on amazon. It is proving to be timely as there have been a spate of news items in the last few weeks claiming to uncover fraudulent claims. This is nothing new to the civil justice system in itself. However, it is the number of cases which is perhaps surprising. This is also reflected in the increase of such suspected claims going through the County and higher courts.

This might be due to the increased number of such cases although it is probably more likely due to other factors as well. The first is advances in technology in the past few years. This includes increasingly sophisticated methods of both gathering and sorting data as well as enhancements to old fashioned detective work such as improved hidden cameras and CCTV. The other factor may be that the insurance industry has scroed large successes in recent years in fighting first credit hire cases and then costs cases on a large scale. Having sharpened their collective teeth on these issues, the spotlight now appears to be shining on fraud. This will mean that defendant lawyers will have to keep up with those at the forefront of this area if they are to keep their business. It will also mean that claimant lawyers will have to be even more careful about the claims they take on.

The issues now surrounding fraudulent and exaggerated claims are now issues of which all personal injury lawyers need to be aware. What remains to be seen is how the legal arguments develop over the next few years. For example, how the courts will view low impact claims and also what view they will take as to the effect of one fraudulent element of claim on the other heads. Unfortunately, as with so many of these issues, what is often forgotten in these fights is that the ultimate victims are likely to be those who pay liability insurance premiums on the one hand and those needing to take out after the event insurance premiums against possible costs orders on the other. The book is intended to highlight some of the various issues which can arise from such cases.

Thursday, August 10, 2006

NHS Redress Bill

Parts of this article have been published in The Future of the NHS edited by Dr Michelle Tempest and in the Personal Injury Brief Update Law Journal.

Abraham Lincoln said in 1850: "Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” This is perhaps more pertinent today than ever before and an example of a government initiative designed to tackle this is the NHS Redress Bill, the implications of which are worth considering at this stage.

The Bill provides for the establishment of a scheme to enable the settlement, without the need to commence court proceedings, of certain claims that arise in connection with hospital services provided to patients as part of the health service. Currently, this scheme will only apply to claims under £20,000 although it is likely to be argued that it should be extended to all claims for clinical negligence in the future as it promises significantly to reduce costs if implemented effectively.

Significantly, the legislation allows part of the settlement to include contracts for future remedial care that is needed, alongside financial compensation. This is important since currently litigants are entitled as of right to claim for the cost of private provision of care (under section 2(4) of the Law Reform (Personal Injury) Act 1948). Again, it may be argued in the future that consideration should be given to repealing this section in relation to claims against the NHS and instead enabling the NHS to offer their own care packages for the future. This, in the long term, may ultimately bring down costs with the NHS providing those services it can cope with, and contracting the others in from the private sector.

However, what is perhaps most interesting about the whole initiative is that in setting up the system for the Redress Bill, the government considered other alternative systems of compensation. In Sweden, for example, a no-fault system of compensation operates for clinical negligence cases. This was considered although ultimately dismissed on the basis that it would probably increase the overall costs due to an increased number of claims.

It remains to be seen whether alternative schemes will be devised to try and cut out the costs to society of personal injury litigation as a whole but one imagines it is only a matter of time before measures are considered. An obvious private sector initiative which many still hark back to as the answer to disproportionate litigation is the old ‘knock for knock’ system. Further they can point to the fact that if insurers and credit hire companies were able to arrive at bulk settlements, then it is all the more so that insurers should be able to do the same between themselves…and so the debate rolls on.