Glaisyers submission for response to the provisional decision on remedies stemming from the Competition and Markets Authority investigation into the private motor insurance market
Glaisyers Solicitors is a multi-disciplinary firm hosting a department which specialises in personal injury and credit hire claims. We help thousands of victims every year in obtaining compensation and assistance following road traffic accidents.
Having reviewed the provisional decision on remedies we are pleased to see provision for individuals following an accident to be granted access to information in relation to their rights. Unfortunately there is little information about a claimants unfettered right to seek independent legal advice from whomever they so choose. Section 11 of Appendix 2.2 makes reference to various parties capable of handling a claim but omits reference to Solicitors who often assist claimants following an accident. Reference is made to statute including but not limited to EU Council Directive 87/344/EEC and Insurance Companies (Legal Expenses Insurances) Regulations 1990 (SI 1990/1159) (the Regulations) Regulation 6 and common law such as Brown-Quinn and another v Equity Syndicate Management Ltd and another [2012] EWCA Civ 1633. If the purpose of Appendix 2.2 is to outline a Claimants legal rights then these statutes should be considered and implemented by way of including the relevant information as to freedom of choice of representation.
We also have some concern with the proposed dual cap. From a legal stand point this dual rate causes contract law issues which could render a hire agreement unenforceable. There appears to be little regard for Consumer Credit Act 1974, The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the common law position in relation to past consideration specifically in accordance with Re McArdle [1951] Ch 669. The proposal of the dual rate cap also seems to have a blatant disregard for years of common law principles in relation to impecuniosity of the claimant and rate, such as Bent v Highways and Utilities Construction and another [2011] EWCA Civ 1539.
Consideration must also be given to the proposition as detailed in section 2.78 (c) of the provisional decision on remedies, in relation to the withdrawal of an admission. The proposition that an insurer may simply withdraw an admission of liability is not the position in law. The law relating to admission of liability is governed by CPR 14.1 (a). In some instances a withdrawal of liability can not be simply made. It is highly likely this proposition will lead to satellite litigation, litigation which would then in turn create further frictional costs contrary to your findings.
Section 2.109 (a) of your report again undermines the current common law position. The starting point when measuring damages is the principle of restitutio in integrum. Whilst it is accepted that the principle of restitutio in integrum is not axiomatic, and that the need for the replacement vehicle is not self proving (per Lord Mustill in Giles v Thompson [1994] 1 A.C. 142 at page 153), it is submitted the hurdle of ‘need’ is a low one. Further Section 2.149 of your report offers little clarification as to the relevance of the proposed mitigation statement, you have suggested that once complete there would be ‘no need for further monitoring’. In practice it is highly likely that a defendant’s representatives would challenge need throughout the period when the hire duration is extensive. Need is subject to change and it is highly likely that a claimant would need to litigate in these instances.
It is important that before any changes are implemented the legal implications are fully considered.
