Claims club - July 2017, Birmingham

Claims club
July 2017, Birmingham

Deprivation of Liberty claims
David Maggs

Content
• Deprivation of liberty – context, COP and DOLS
• Defining deprivation of liberty – the supreme court in
Cheshire
• Consequences
• Claims and costs
–Within compensation claims
–For unlawful DOL

Mental Capacity Act
• Deals with establishing whether people have capacity
to make a particular decision for themselves
• If not – then what? In their best interests – who decides
and how?
• Court of Protection
• DOLS (deprivation of liberty safeguards)…

MCA s5 – power to act reasonably
• No liability if you reasonably:-
– think P lacks capacity for a decision, and
– do something you think will be in their best interest

Limits on s5
• BUT s5 does not cover ‘restraint’ unless
– Reasonably believed to be necessary to prevent harm,
and
– Proportionate to likelihood / seriousness of that harm
• Nothing authorises ‘Deprivation of Liberty’, except
– Schedule A1 (i.e. DOLS)
– Court of Protection Order
– Necessary for life sustaining treatment or ‘vital act’,
while a decision is sought from the Court

Art 5 – Right to liberty and security
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save
in the following cases and in accordance with a
procedure prescribed by law”:
• after conviction by a court;
• lawful arrest;
• lawful detention of a minor for educational supervision;
• lawful detention for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or
drug addicts or vagrants;
• lawful arrest to prevent unauthorised entry into the country

Lawful detention
• Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the
detention is not lawful (Art 5(4))
• Everyone who has been the victim of arrest or
detention in contravention of the provisions of this
article shall have an enforceable right to compensation
(Art 5(5))

Bournewood Gap
• A patient who lacks capacity to make decisions about
care and residence and is kept in circumstances which
effectively amount to a deprivation of liberty
• Not treated under the Mental Health Act
• Not in the patient’s best interests to be discharged
• No framework for detention/review/plan for discharge
• Patient is in ‘limbo’

Problems ?
• What is a DOL ? 3 elements:
1. Objective – confinement to restricted space for a
non-negligible period of time
2. Subjective – no consent
3. Imputable to the state

• P (MIG) & Q (MEG) v Surrey CC
• P v Cheshire West and Chester
• Supreme Court Judgment 19 March 2014
Defining ‘deprivation of liberty’

MIG (P)
• into care at age 16
• learning disability – mental age
of 2½ years
• placed by LA with a foster
mother, in her home
• went to college daily
• no medication
• no attempt to leave, but would
have been restrained from
doing so
MEG (Q)
• into care at age 15
• learning disability – mental age
of 4-5 years
• moved from foster care to a
‘small group home’
• sometimes needed physical
restraint / tranquilisers
• not allowed out without
supervision, and movement /
contact were subject to staff
control

P v Cheshire
39 year old man39 year old man
Cerebral palsy and Down’s
syndrome
Cerebral palsy and Down’s
syndrome
lacking capacity for care and
accommodation decision
lacking capacity for care and
accommodation decision
placed by LA in a group home
– Z house - not a care home
placed by LA in a group home
– Z house - not a care home
use of restraint / body suituse of restraint / body suit

Common pitSupreme Court Judgment –
19.3.14
“… human rights are for everyone, including the most
disabled members of our community, and … those
rights include the same right to liberty as everyone
else”
Lady Hale (para 1)

Common pitThe ‘acid test’
“… features consistently regarded as key in the [ECHR]
jurisprudence … that [P] was under continuous
supervision and control and was not free to leave”
Lady Hale (49)

Excluding factors (previously) typically
relied on to say no DOL…
• P’s disability / ‘relative normality’
• P’s awareness / compliance
• reason or purpose behind the
placement
• the quality / appropriateness of the
care
• ‘A gilded cage is still a cage’
just as important…

applying the ‘acid test’
• Both P in Cheshire and MIG and MEG in Surrey were
“under complete supervision and control and were not
free to leave”
• All 3 were deprived of their liberty
• Appropriately
• But need scrutiny and due process

a matter of policy …
“because of the extreme vulnerability of people like P,
MIG and MEG, I believe that we should err on the
side of caution in deciding what constitutes a
deprivation of liberty … They need a periodic
independent check on whether the arrangements
made for them are in their best interests…”
Lady Hale (57)

• 800,000 with dementia, 200,000
in care homes
• 1.5m with LD
• BMJ – 40% of in-patients lack
capacity to consent to be there
• As at Cheshire – c2,000 DOLS
authorisations in place at any
time
potential scale

• 42% of applications made in
2015/16 had not been processed
• average case not yet reviewed was
215 days old
• oldest unprocessed referral is c800
days?!
• only 29% of applications were
dealt with in <21 days (down from
56%)
as at 31 March 2016

ADASS
figures
COP
applications
2015/16 31,500
2014/15 28,500
2013/14 212

• Streamlined COP process – “Re X”
• Paper based, judicial, individual
• Triggers for an oral hearing
• P need not be a party
• Subject to Court of Appeal
• Costs uncertain
practical issues – COP

• a ‘post Cheshire’ world – DOL on ‘an industrial
scale’
• forms/bureaucracy reduced but fundamentally
system will be the same – whether DOLS or COP -
for the foreseeable future
• more people will be deprived of their liberty than
can possibly be authorized under current systems
• need ‘a measured and practical’ approach
In the meantime…

Reform ?
• House of Lords Report - 13 March 2014
• Praises MCA principles – not implementation
• Inherent cultural problems esp in health care
(‘paternalistic’) and social care (‘risk averse’)
• VERY critical of DOLS system – ‘not fit for purpose’
• Law Commission review
– Report and draft legislation March 2017 – but won’t
remove issue and reform unlikely sooner than 2020

Implications
• Claims for unlawful DOL
– Acute Trusts
– CCGs as commissioners of community package
– Providers of care – eg care homes
– Local authorities
• Makeweight allegations of unlawful DoL
• Claims for cost of authorisation of community DOL in
Clin Neg / EL/PL claims

Costs of DOL authorisation
• C is injured by admitted or established negligence
• C will need a package of dom care which will involve a
deprivation of liberty (under CSC+NFTL)
• No consent and imputable to the state (e.g. because a
deputy – officer of the COP – makes arrangements)
• Therefore application will need to be made to COP (by
deputy?)
• Costs should be recoverable – say £4,500 year 1 (+ £900
fees) and £2,500 pa (+ fees?) – i.e. lifetime c?£80-100k

Liabilities …?
• DoL for someone of unsound mind is unlawful unless /
until DOLS authorisation or COP Order
• Article 5(5) – DoL in breach of Art 5 = “an enforceable
right to compensation”
• NB – not just prospective from 19.3.14
• MIG / MEG / P were DoL since 2008/09

Accruing liability…
• An interim COP order would stop any claim accruing
• But - Neither COP nor LAs (as supervisory body of DOLS)
will have the resource to be able to process the
numbers of cases that will now need review

Who is liable?
• CCG(or LA) as commissioner
• LA as Supervisory Body
• Managing Authorities (i.e. care home & hospitals)

Where are the claims?
• How many have you seen?
• Elsewhere in the authority?
• Lying in wait?

Peculiarities of the claims
• Not a claim for personal injury
• QOCS – not applicable - not an action for personal
injuries or under the Fatal Accidents Act 1976 or under
the Law Reform (Miscellaneous Provisions) Act 1934.
• CRU – not applicable - the payment is not made in
consequence of any accident, injury or disease.

Funding
• Could be privately funded or CFA, but
• Legal aid available (because a breach of Human Rights)

Who is bringing the claims?
• Family?
• Official Solicitor?
• Who are the Claimants’ solicitors?

Are you insured?
• Human Rights - not specifically covered
• False Imprisonment?
• If only breach of Human Rights is pleaded?
• Any policy points?

Where are the claims litigated?
• Court of Protection?
• The statutory charge problem
• The Court of Protection Rules problem

Remedy
• COP has jurisdiction for damages – YA(F) v A LA (2010)
• Per ECHR – ‘just satisfaction’ – an apology?
• Argue HRA 1998 s8(3) –
No award of damages is to be made unless, taking account of all
the circumstances of the case, including—
– (a)any other relief or remedy granted, or order made, in
relation to the act in question (by that or any other court), and
– (b)the consequences of any decision (of that or any other
court) in respect of that act,
the court is satisfied that the award is necessary to afford just
satisfaction to the person in whose favor it is made.

Judicial discretion…
• Limitation
• Remedy (and sufficiency of non financial remedy)
• Costs – CoPR 157 – generally no order for costs in
welfare cases BUT discretion in light of conduct
– G v E (Manchester CC), Milton Keynes BC, Somerset CC
– Distinction between costs of the claim and COP welfare costs(?)
• Judiciary getting impatient …

Quantum
• Per ECHR – ‘just satisfaction’ – an apology?
• COP has jurisdiction for damages – YA(F) v A LA (2010)
• Nominal damages –
– Bournewood (CA)
– Lumba (SC)
– Bostridge v Oxleas NHS FT (2014)
• Serious damages –
– Neary (2011) - £35,000
– A LA v Mrs D (2013) - £27,500 and now…

Compensation
• court approved:
– declaration that Essex CC unlawfully deprived CP
of liberty between at least 2/5/13 and 4/7/13 and
between 15/8/13 and 7/7/14
– £60,000 for unlawful detention
– Essex CC waived fees payable by P to the care
home of £23,000 to £25,000
– And RF’s legal costs estimated at around £50,000
• Referred to £3,000-£4,000 per month based on Neary
and Mrs D cases

Not a benchmark (?)
• Even for substantive breaches -
– Exceptional circumstances
– Case law emphasises case by case basis
– Imperative to settle
– Court approval means P is not under settling – NOT
that this is the right amount
• BUT NB the process and legal costs of proving only
a procedural breach

False imprisonment
• Thompson v Commissioner of the Police of the
Metropolis [1998] QB 498 CA
• £3,500 in respect of the first 24 hours then a sliding
scale down to approximately £100-200 per day (£58,100
for a year)
• Exemplary and aggravated damages

PPI for the NHS / social care?
• We are seeing claims
• C lawyers looking for
new markets
• No sign that NHS / LAs
will get the unlawful
DOLs authorised soon
• In taking cases to COP for
approval – provides a
forum for a claim

Conclusion
• to minimise ongoing exposure
– Training / awareness
– Urgent COP applications / DOLS
• Need a strategic response to claims
– consistent line to defence / quantum
– Focus and pool expertise
• Proactive admissions for past periods (?)
– apology as “just satisfaction”
– A large scale ADR scheme?

Some practical points
• Talk to legal/adult social care
• Talk to insurers
• Settle early without proceedings?

Some practical points …
• Ambit of legal aid certificate
• Part 36
• a. part 3.9 of the CoP Rules
• b. costs of approval
• c. agree a declaration?
• Remember – no QOCS/CRU

Defamation
‘the action of damaging
the good reputation of
someone’

There’s a fair bit to cover!
• Overview of the law
• Limitation
• Defences
• Infringement of human rights?
• DPA
• Damages
• Risk management
• What is your experience?

What is defamation?
• “libel, slander, character assassination, calumny,
vilification, traducement, obloquy, scandal,
scandalmongering, malicious gossip, tittle-tattle,
backbiting, aspersions, muckraking, abuse,
malediction, disparagement, denigration,
detraction, derogation, opprobium, censure,
criticism, smear, slur, lie, false report, bitching,
bad-mouthing, contumely”

Or…
• Publication to third party of words/actions
containing untrue imputation against reputation of
individuals
• Tort of defamation seeks to redress the unjustified
injury to reputation caused by the publication
• Slander: temporary form e.g. spoken word
– Libel: permanent form e.g. written

Who can bring a claim?
• Individual or class of individuals (including patients and
minors)
• Any legal entity
• Trade Unions
NOT:
• Governing bodies
• Political bodies - Derbyshire County Council v Times
Newspapers 1993 AC 534
• Unincorporated associations

When to bring the claim?
• Limitation: 1 year from date of publication (s4A
Limitation Act 1980).

And of course…
• Discretion to allow a claim outside the one year
time limit when “equitable” to do so (s32A
Limitation Act 1980).
– Wide and “largely unfettered” (Steedman v BBC [2001]) BUT
exercise of discretion is exceptional.
– Take into account: cogency of evidence; effect on
D’s ability to defend; seriousness of alleged
defamation, extent of publication, length and
reasons for delay.

What’s the harm?
• Slander: requires proof of special damage ie
usually financial loss (except where words impute
commission of criminal offence or calculate to
disparage Claimant in office, calling, trade or
business)
• Defamation Act 2013 s 1:
“statement is not defamatory unless its publication
has caused or is likely to cause serious harm
to the reputation of the Claimant”

Serious harm
• Body trading for profit: actual or likely serious
financial loss
• Private individuals: serious harm to reputation
– Dealt with by evidence presented by Claimant and,
if appropriate, rebutted by Defendant unless
inference obvious from the context
– Threshold test: often appropriate to deal with as
preliminary issue

How do we defend?
• Truth
• Honest opinion
• Publication on matter of public interest
• Innocent dissemination
• Operator of website
• Consent
• Offer to make amends
• Privilege: qualified and absolute

Truth
• Onus on defendant – imputation conveyed by
statement is substantially true
• Natural and ordinary meaning
(preliminary issue trial on meaning?)
• Rumour and hearsay is no defence
Be sure of the truth of what
you’ve been told before you repeat it!

Honest Opinion
• Statutory defence under Defamation Act 2013 s 3
i. Statement of opinion
ii. Statement indicates the basis of the opinion
iii. Opinion is one honest person could have held on
basis of fact (or asserted to be fact in privileged
statement published previously)
• Defence not available if not a genuinely held
opinion or malicious.

Public Interest
• Statutory defence under Defamation Act s 4
- Statement on a matter of public interest AND
- Defendant reasonably believed that publishing
statement in public interest
• Can rely on this defence whether fact or opinion

Innocent dissemination or
operator of website
• Innocent disseminator: Not author, editor or
publisher of statement;
• Took reasonable care in relation to its publication;
• Did not know, and had no reason to believe, that
what he did caused or contributed to publication of
defamatory statement
• Website operator: did not post content himself
BUT if C gave notice and operator failed to respond
then COULD be liable

Consent, offer to make amends
• If you consent to the publication, can’t complain
(express or implied consent but clear and
unequivocal)
• Offer to make amends is a defence if:
- publish a suitable correction and apology;
- Pay suitable compensation (and costs);
- If accepted – can’t bring defamation proceedings.
• D can also rely on the above in mitigation of
damages.

Privilege
• Balance of human rights of subject and freedom of
information/public policy: burden of proof on
Defendant
• Absolute: complete defence regardless of
dishonesty or malice
• Qualified: lesser protection “where the person
who makes a communication has an interest or a
duty, legal, social or moral to make to the person
to whom it is made” (Adam v Ward [1917] AC 309)

Absolute Privilege
• Statements by one officer of state to another in official
duty;
• Statements made in Parliamentary proceedings;
• Statements contained in reports by House of
Parliament;
• Statements made in judicial proceedings;
• Fair and accurate reports of proceedings held in public;
• Statements, reports and determinations of various
officers, bodies.

Qualified Privilege – common law
• Two-fold Test: reciprocity is essential
• Maker: legal, moral or social duty to make
statement or statement to protect/further interest
or common interest to make statement to a person
who has corresponding duty/interest to receive;
• Recipient: corresponding interest or duty to
receive the statement.

Examples of qualified privilege
Duty
• Reply to requests for information e.g. employment
references
• Volunteered statements e.g. pre-existing
relationship (employer writing to new employer re
misconduct); statements about those who
seek/hold public office
• Reply to an attack – similar to self-defence in crime
(don’t go beyond what is necessary)

• Common interests between maker and recipient
e.g. employer and employee common interest in
success of business; complaints about persons in
authority
• Also, statutory defence if reports listed in Schedule
1 of Defamation Act 1996

Malice
• If the statement is malicious, qualified privilege is
not available : burden of proof on the Claimant.
• Acting with improper motive – spite or ill will;
private advantage unconnected to duty/interest.
• Employer vicariously liable for employee’s malice.

Where do human rights fit in?
• Public authorities must ensure that they do not
contravene an individual’s Article rights, in
particular, Article 8: right to private and family life
• Can only rely on qualified privilege if acted
compatibly with Art 8 rights of those to whom
information relates (see Clift v Slough BC [2001]
and Ma v St George’s Healthcare Trust [2015])

Article 8 is a qualified right
• Art 8(2) : “no interference [...] except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national
security, public safety or the economic well-being
of the country, for the prevention of disorder or
crime, for the protection of health or morals, or
for the protection of the rights and freedoms of
others.”

…the courts will not be quick to find a breach of Art 8
• Recent successful summary judgment/strike out in the
High Court on behalf of a Local Authority
• LA’s social workers shared information about C’s spent
convictions for viewing indecent images of children in
the context of child protection processes for C’s child
• Court determined that qualified privilege applied: Art
8(2) engaged as acting in protection of child’s rights;
information only shared with those with duty/interest
to receive.

What about the Data Protection Act?
• Often pleaded together
• Sharing information – remember that everything
you share is published:
– Always consider who is the subject of information;
– Who is recipient;
– Are they entitled;
– What are the contents – is anything defamatory??

Often simply a mistake…
• Human error:
– Wrong letterbox, person or address?
– Contemporaneous recording – the minute-taker. Don’t make
fact findings if you shouldn’t e.g. CPCCs
– Post-event recording – is it accurate? Don’t make
assumptions e.g. transcription of diary note

Where are local authorities most
vulnerable?
• “Council apologises for false abuse letter” – publication of letter from a social
worker mistakenly referred to the Claimant as being the perpetrator of
child/domestic abuse
• “Council pays out damages for defamation by social services team” – information
supplied by a third party was misunderstood and mis-recorded
• Repeating gossip/the perils of Twitter (Monroe v Hopkins [2017]) – Katie Hopkins
managed to confuse two commentators, incorrectly attributing remarks to the
Claimant. Court found the tweets were defamatory and there had been ‘serious
harm’ to Monroe’s reputation.
• The risk to local authorities is extremely wide – the challenge is managing the risk…

Sanctions/Remedies
• Damages: to compensate for harm caused and to
vindicate reputation.
• Injunctions: to prevent future publications.

Damages
• General Damages: compensate for damage to
reputation, vindicate good name and take into
account distress, hurt and humiliation.
• Aggravated Damages: to take into account motive
and conduct of Defendant – “high handed,
malicious, insulting or oppressive”?
• Exemplary Damages: to deter, punish or convey
disapproval.

How much? Far more if you don’t apologise!
No tariff but:
- Overall ceiling of around £300,000 (Raj v Bholowasia [2015]) reserved for gravest libels of
widespread publication of allegations of genocide, terrorism or murder
- Wide bracket – depends on harm caused; nature of information, how widely published.
 Lille and Reed v Newcastle City Council and others [2002] – nursery workers accused of sexual,
physical and emotional abuse of children, which was nationally reported, awarded £200,000.
 Ghannouchi v Al-Arabiya [2007] – the Claimant, a Tunisian exile accused of having links with Al-
Qaeda awarded £165,000. No apology or offer of amends have the consequence of an
aggravated award.
 Houston v Smith [1993] – Claimant was a GP who was accused by the Defendant of having
sexually harassed her. Made in front of only a few people in the waiting room but could have
ended the C’s career. Reduced on appeal to £50,000 from £150,000 – had the Defendant
promptly apologised it would have been a fraction of that.
 Recent example: Monroe v Hopkins: £24,000 (£16,000 for 1st tweet and £8,000 for 2nd tweet).

How do you manage the risk?
• Where are the greatest areas of risk?
• A challenge because anyone within the authority could fall foul
• Identify riskier areas:
– Social care employees – confidentiality, sensitive subjects
– Public facing roles e.g. councillors, press officer
• What practical steps can be taken to mitigate the risk?
- Data and information management officer – review systems
- Training to those areas identified at greatest risk
- Online training and support across the authority?

Always sensible to have a strategy
• Greatest risk on claims – reputational and financial
• Commonly Claimants are unrepresented = increased
costs
• Consider early application to strike the claim out, or at
least narrow issues – can be used to good affect
• If at fault (even partially), don’t be afraid to admit
that and apologise – it will allow both the damages and
costs to be managed

Contact us…
David Maggs
E: david.maggs@brownejacobson.com
T: +44 (0)20 7337 1005

Prepared by Aon Risk Solutions/National
Insurance Market Overview & Trends – July
2017
Nigel Cooper
Aon Risk Solutions – Public Sector Practice Leader

Aon Risk Solutions/National
83
Copyright Aon UK Limited. All rights reserved.
Aon UK Limited is authorised and regulated by the Financial Conduct Authority.
Public Sector Insurance Market Overview
 Healthy competition for most lines of business
 Recent entrants helping keep rates under control
 Established Insurers in the sector remain committed
 Long Term Agreements - are they sustainable to end of
term?
– Ogden Table changes to discount rate
– Post Grenfell Tower
 The Insurance Act 2015 came into effect 12 August 2016
 Insurance Premium Tax increases

84
Property Insurance
 Market is very buoyant
 Insurer appetite is greatest for those risks who are
prepared to take on reasonable levels of self-insurance
 Now seeing up to five quotations on a typical Borough
Council property programme (Aspen, Maven, Protector,
RMP, Zurich Municipal)
 Best results achieved for:
– Well presented risks supported by full property listing, with up to date sums insured,
postcodes etc.
– Survey reports on top value locations more than repay for survey costs
– Willingness to take on a reasonable level of self-insurance
 Most Insurers will underwrite on the basis of a loss limit
 More underwriting information requested on Tower Block
risks

85
Motor
 Strong competition from established Insurers RMP,
Travelers, Zurich Municipal with competition from Maven
(Amlin) and Protector
 Rating driven in the main by individual claims experience
 Increased frequency and cost of large personal injury
claims is an issue for insurers.
 Changes to claims discount rate a major concern for all
Insurers
 Having an effective Motor Fleet Risk Management
Programme has a positive influence on underwriters
 Good procedures for prompt First Notification of Loss is a
plus

86
Liability Insurances (EL, PL, OI, PI)
 Extremely challenging Liability market at the moment
 Insurers concerns on any risks which have exposure with:
– Highways Claims
– Social Services
– Late notified claims`
 Increasing frequency of large personal injury claims.
 costs increasing exponentially through periodic payment order
based settlements.
 Claims Discount Rate changes a major issue.
 Strong recommendation to review adequacy of Limits of
Indemnity
 Long Term Agreements being broken.
 Good appetite for Borough & District Councils programmes
 Imperative to get renewal terms early (at least three months
before renewal) to allow time to retender if necessary

87
Claims Discount Rates (Ogden Tables)
 Ogden tables – discount rate now 2.5%
 Impact- EL; PL; Motor - future capacity claims
 Examples - from Weightmans
– £8.2m- up to £19.1m; £2.7m up to £3.9m
– £4.9m up to £6m- £20m up to £38m
 Rates to increase?-YES!!!!
 Fund audits! - possible effect if high deductibles
 MMI- hands up- who would like to predict impact?

88
Maven Public Sector
 Established December 2014 to bring new capacity into
Public Sector insurance market
 Open market capacity available to all Brokers - Will not
deal direct
 Appetite is for Property, Casualty , Fidelity Guarantee,
Motor and Personal Accident for Local Authorities, Police,
Fire & Rescue but will consider other Public Sector risks
 Winning mainly Casualty & Motor business so far but new
Property capacity in 2017

89
Protector Forsikring
 Leading Public Sector Insurer in Nordic Area (Norway ,
Denmark, Sweden)
 Professional approach to entering UK Public Sector with
extensive research and insights before entering.
 See themselves as a challenger to the established UK Insurers
 Started quoting for business from end 2015 and regularly
winning business in 2016 through to 2017
 Have won a good number of large Property, Liability and Motor
risks to date and continue to grow their customer base.
 Open market capacity only available through brokers - Will not
deal direct
 Appetite is for Property, Casualty, Computer and Fidelity
Guarantee for Local Authorities of all types

90
Togethersure
 On CCS Framework as Insurer who will deal direct or via a
broker
 Can give Motor quotations (not Blue Light)– nothing seen
so far
 Market capacity is Walsingham (New India)
 Proximo or MRSL as claims handlers
 Service based in Basingstoke
 Working with Eaton Gate - experienced provider of MGA
services to establish solutions for other lines of business
 CCS broker briefing 18th Jan by still a lot remains under
wraps as commercially sensitive

91
Swiss Re
 Historically would only consider large Property and Public
Liability risks with very high deductibles (£500k to £1m)
 Will now consider all types of Local Authority which meet their
risk criteria
 Still a selective approach but will now quote Property, CAR,
EL/PL for Local Authorities where the risks meet their selection
criteria (ability to demonstrate a commitment to risk
management and willingness to work in partnership with Insurer)
 Can be very competitive on risks which meet their selection
criteria
 Initially used Kerberos Consulting to provide insight into risk
selection and act as bid managers. Now doing this themselves

92
Aspen
 Long established Insurer in Public Sector
 Historically appetite has been for Property risks on
Borough & District Councils – an area where they continue
to compete effectively
 Good capability on Leasehold Property portfolios
 More selective approach to Liability risks but where risk
meets their criteria they can be very keen on rating.

93
Insurance Premium Tax
 Insurance Premium Tax Increases:
– 1 April 1997 to 30 June 1999 - a standard rate of 4%
– 1 July 1999 to 3 January 2011 - a standard rate of 5%
– 4 January 2011 to 31 October 2015 - a standard rate of 6%
– 1 November 2015 to 30 September 2016 - a standard rate of 9.5%
– From 1 October 2016, the standard rate is 10%
– From 1 June 2017 the standard rate increased to 12%
 Unlikely to be the end of the story
 Rates in Europe already significantly higher
 Is your programme structure tax efficient?
 Consider Total Cost of Insurable Risk Exercise

94
Any questions
For further market updates and other insight
information please view Aon Inperspective
newsletters published on:
http://www.aon.com/unitedkingdom/products-and-services/industry-expertise/public-
sector.jsp

Human Rights Act claims
Bridget Tatham
Claims club 2017

The context
• Civil Justice statistics published June 2017 – covers
January to March 2017.
• Civil claims i.e. not family matters or failure to pay
council tax.
• But debt, the repossession of property, personal
injury, the return of goods and insolvency.

The context …
• County court claims up by 18% - driven by specified
money claims
• So, the courts are busy

The context ….
• Unspecified money and non-money claims up 9%
and 5% respectively
• Personal injury claims – up 10%

The context …
• Unspecified money claims had been generally
declining since a peak of 46,674 in Q1 2013,
however in the most recent quarter, they increased
to 37,698.
• Personal injury claims account for almost all (95%)
of unspecified money claims.

The context ….
• High Court – Queen’s Bench Division had 4,123
proceedings started in 2016, 751 (15%)
fewer than 2015.
• The most common type of claim was personal
injury actions, which accounted for 38% of all
proceedings stated in 2016.

The context …
Claims allocation – increased 5% but within that
• Multi-track dropped 9%
• Fast track dropped 9%
• Small claims track increased by 18%
• So, you are seeing more low value, low cost claims
and more litigants in person

The context …
• 20% increase in claims going to trial - driven by
small claims
• 35% increase in judgments – but 87% of these are
default judgments

The context …
Year P I claims – county court
2010 84,552
2011 110,582
2012 146,644
2013 146,867
2014 131,441
2015 142,724
2016 133,882

The context …
• Whiplash accounts for 78pc of all personal injury
claims in the UK – Daily Telegraph July 2013

The context …
• A Claim Form in the High Court or County Court
records whether there is a Human Rights element
to the claim – but what do the numbers tell us?
• Remember, the Court of Protection and the Family
Courts are trying Human Rights claims too

But, HR judgments on Lawtel
• 1998 (2) • 2006 (6) • 2014 (36)
• 1999 (9) • 2007 (7) • 2015 (46)
• 2000 (10) • 2008 (12) • 2016 (107)
• 2001 (15) • 2009 (11) • 2017 (175)
• 2002 (12) • 2010 (13)
• 2003 (8) • 2011 (22)
• 2004 (11) • 2012 (18)
• 2005 (13) • 2013 (28)

Human Rights – the key ones
• Article 2 – Life
• Article 3 – Torture, inhuman or degrading
treatment
• Article 5 – Liberty
• Article 6 – Fair trial
• Article 8 – Private and family life

Insured?
ALARM – Children’s services guide
“Human Rights Act … virtually all UK policies are
silent on … cover so the policyholder would need to
trigger the operative clause of the policy for the
cover to operate”

Limitation
Human Rights Act 1998 section 7(5)
Proceedings must be brought before the end of —
(a) the period of one year beginning with the date on
which the act complained of took place; or
(b) such longer period as the court or tribunal
considers equitable having regard to all the
circumstances.

Limitation
Is not delayed
a. for those who lack capacity
AP (BY HIS LITIGATION FRIEND, BA) v TAMESIDE
METROPOLITAN BOROUGH COUNCIL [2017] EWHC 65
(QB); or
b. for children
M (A CHILD BY HIS LITIGATION FRIEND LT) v MINISTRY
OF JUSTICE [2009] EWCA Civ 419

But
• Is the breach continuing? e.g.
• a care regime continuing to deprive the patient of
his liberty; or
• a child held on section 20

Is it a personal injury claim?
• Articles 2 & 3 – probably
• Articles 5, 6 & 8 - probably not

If not a personal injury claim
• No CRU applicable – no payment in consequence of
any accident, injury or disease.
• No QOCS – only applies to personal injury claim or
under the Fatal Accidents Act 1976 or under the
Law Reform (Miscellaneous Provisions) Act 1934.

Jeffreys v The Commissioner of
the Police of the Metropolis
• CPR 44.16(2)(b) provides an exception to QOCS
where “a claim is made for the benefit of the
claimant other than a claim to which this section
applies”.
• The Claimant had failed in his claim for false
imprisonment, assault and battery, malicious
prosecution and misfeasance in public office. His
claim for related personal injury – exacerbation of
pre-existing paranoid schizophrenia - also failed.

Jeffreys
• The High Court upheld a ruling that disapplied
QOCS under the little-used exception relating to
‘mixed’ claims, and in what is said to be the first
case of its type, where the personal injury element
was found to be a relatively minor part of the
wider claim.

Human Rights in the Family
courts
• Human Rights claims are appearing in the context
of care proceedings –
• Article 6 – right to a fair trial
• Article 8 – right to private and family life

courts – vulnerabilities
• Failures to follow proper processes and procedures
• Removal of children
•
• (Mis)Use of EPOs
• Action/inaction following final care and placement
orders

courts – examples
• failure to conduct and/or update proper
assessments of the needs of a child in care for an
unacceptable period of time;
• failure to formulate and to implement proper and
robust care planning for a child in care for an
unacceptable period of time;
• failure to meet the assessed needs of a child in
care in a proactive manner for an unacceptable
period of time;

courts – examples
• failure to identify and put in place appropriate
support (including therapeutic intervention) for a
child in care;
• failure to issue court proceedings in a proper and
timely manner for a child in care;
• failure to promote contact between a child in care
and his parents and/or siblings;

courts – examples
• failure to keep the parents of a child in care
informed and sufficiently involved in its decision
making process;
• failure on the part of the IRO to challenge the
conduct of the LA and to promote the issue of
court proceedings;
• failure to properly analyse evidence, to review
decision-making in proceedings, and to make
timely disclosure.

Why in the Family Courts?
• application for declaratory relief and damages
• heard within proceedings, whichever court they are
being heard in - raised in the tribunal seised of the
matter
• no need for transfer to the High Court – unless
genuinely novel or complex points
• raised as soon as possible in proceedings and if
they give rise to a need for a transfer to the High
Court the whole case should be transferred.

Where litigated
• If a claim is raised after the proceedings have
concluded it should be issued in the High Court
• appropriate for HRA claims which arise in, and on
the same facts as, CA 1989 proceedings to be
considered by the court within the CA 1989
proceedings.

Where and how?
• Every tier of the Family Court, including the
magistrates, can deal with HRA claims;
• Applications for declarations and/or damages
under the HRA should be issued as civil proceedings
by way of a Part 8 CPR claim, and should not be
issued on a Form C2 (even if within
existing CA 1989 proceedings).

Formalities
• claims for declarations and/or damages should be
issued formally, even if made within existing
proceedings;
• a child claimant in HRA proceedings requires a
litigation friend appointed under Part 21 of the
CPR

Children’s Guardian?
• Cafcass cannot authorise its officers to act as
litigation friends to children claimants so it is
not appropriate for a Children's Guardian who has
been appointed in specified CA 1989 proceedings to
act as litigation friend, or 'front' the claim as if
he/she is a litigation friend, in a related HRA
claim. The litigation friend must either file a
certificate of suitability [CPR Part
21.4(3)/Part21.5(3)] or have a court order (Part
21.6);

FPR or CPR?
• Such applications under the HRA are governed by
the Civil Procedure Rules, not the FPR.
• The regime of Part 36 CPR 1998 ('Offers to Settle')
applies. The full costs regime in Part 44 CPR also
applies, including (in contrast to the position in
family proceedings) the general rule that 'costs
follow the event' in HRA claims (CPR, Part
44.2(2)(a).

Funding issues
• the publicly funded claimant in an HRA claim who
is also publicly funded in associated (or
'connected') proceedings, is vulnerable to a claim
for recoupment of the costs of both sets of
proceedings by way of statutory charge from any
award of HRA damages;
• in HRA proceedings, the Legal Aid Agency may
issue a publicly funded certificate for a claimant
to pursue declarations only, and not damages.

Mediation?
• The cost of pursuing relief under the HRA can
very swiftly dwarf, or indeed obliterate,
the financial benefits sought. Many such cases
are surely suitable for non-court dispute
resolution, and the Judges have ‘enthusiastically
recommended’ that parties divert away from the
court to mediate their claims.

Compensation?
• the award of damages is discretionary i.e. a
declaration that there has been a breach does not
automatically lead to the making of an award of
damages.
• an award of damages is only made where the court
considers it to be necessary in order to provide the
person whose rights have been breached with ‘just
satisfaction.

Compensation – influences
• The length of the proceedings
• The length of the breach
• The severity of the breach
• Distress caused
• Insufficient involvement of the parent or child in
the decision making process
• Other procedural failures

Compensation – how much?
• Between £30,000 and £3,000
• http://www.alc.org.uk/publications/publications/s
chedule_of_cases_damages_in_hra_claims_involvin
g_children_within_care

Conclusions
• PI litigation looks to be increasing (+10%)
• Small claims track cases are rising, fast and multi-
track cases are falling – good news on Claimant
costs, bad news on more litigants in persons
• HRA claims are increasing – and coming from both
the CoP and Family Courts
• Don’t confuse HRA claims with personal injury
claims – eg limitation, CRU, QOCS and “just
satisfaction”

The future
• ‘Legislation will also be introduced to modernise
the courts system and to help reduce motor
insurance premiums’
• Brexit – HRA claims may be impacted – but beware
the ‘Brexit bulge’

Risk management
• Talk to your colleagues (adult social care,
children’s services and legal)
• Is it time for an audit?

Audit focus
• Parents properly involved?
• section 20 CA 1989 used appropriately?
• Proper (timely) assessments and updated
assessments?
• Court orders and directions complied with?
• Meaningful contact between parents and siblings?
• Recognition of errors – an apology?

Contact us…
Bridget Tatham
E: bridget.tatham@brownejacobson.com
T: +44 (0)121 237 3916
David Maggs
E: david.maggs@brownejacobson.com
T: +44 (0)20 7337 1005

All information correct at time of production.
The information and opinions expressed within this document
are no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained
within this document is and shall remain the property of Browne
Jacobson. This document may not be reproduced without the
prior consent of Browne Jacobson.

Claims club - July 2017, Birmingham

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