Our Birmingham Claims Club event will cover the following: - Civil Liability Act 2018 - Freedom of Information Act requests - including 'Information Law, why is it relevant?' - Brexit and local government

1. 13 March 2019
Welcome to Claims
Club

2. Civil Liability Act 2018
Matt Harpin, Associate

3. Civil Liability Act 2018
— Why was it introduced
— What does it propose to change
— Impact on you

4. Civil Liability
Act 2018
Discount Rate
Whiplash
Reforms
Cost
Savings

5. Civil Liability Act
Quiz

6. Whiplash Reform
Injury Duration Fixed Tariff JCG guidelines current damages Insurer savings per claim
0-3 months £225 Few hundred - £2,150 Few hundred - £1925
4-6 months £450 £2,150 - £3,810 £1,700 - £3360
7-9 months £765 £2,150 - £3,810 £1,385 - £3045
10-12 months £1,190 £2,150 - £3,810 £960 - £2620
13-15 months £1,820 £3,810 - £6,920 £1,990 - £5100
16-18 months £2,660 £3,810 - £6,920 £1,150 - £4260
19-24 months £3,725 £3,810 - £6,920 £85 - £3195

7. Whiplash Reform
Will the tariff apply to
motorcycle claims?

8. No, the tariff will not apply to claims
by motorcyclists or their passengers,
cyclists, pedestrians or other road
users who are not using a motor
vehicle.

9. Whiplash Reform
Can you settle a claim
without a medical
report?

10. No, there is a ban on pre-medical
(or ‘pre-med’) offers, where insurance
companies settle claims directly with
accident victims, without obtaining
medical evidence.

11. Whiplash Reform
The portal system which is being
created to handle whiplash
claims is primarily being designed
for use by whom?

12. The Portal is being designed for use by
Litigants in Person (LiPs) and aims to be
simple and user-friendly. The Portal will
undergo large scale testing in October 2019

13. Whiplash Reform
When are all the reforms due to
come into force?

14. The Government intends for the
reforms to come into force in April
2020 but this is subject to the portal
being fully operative

15. The Discount Rate
— What is it?
– Lowered from +2.5% to -0.75% 20/3/17
— Changes
— What does this mean for you?
— Conduct at JSMs? - +0.5% to +1.0%

16. Discount Rate
Who has the power to
make the order setting
out the new rate?

17. Lord Chancellor,
David Gauke

18. Discount Rate
The first review must commence
WITHIN 90 days from the date of
Royal Assent.
What is the deadline for the first
review?

19. On or before 19 March 2019.
The date of Royal Assent was 20
December 2018 and the review must
commence WITHIN 90 days

20. Discount Rate
Following the first review, the
Lord Chancellor must determine
the new rate within how many
days of the review commencing?
a) 120 b) 140 c) 200

21. b) 140 days
The Lord Chancellor must reveal the
rate on or before 6 August 2019

22. Discount Rate
What do you predict that the new
Discount Rate will be?

23. All correct as we don’t actually
know! ..However the current
predictions are 0- 1%

24. Discount Rate
Payment of future losses, if appropriate, are
made by way of periodical payment orders
(PPOs). Under the new changes, will these be
subject to the new discount rate?

25. No, PPOs will not be subject to the
new discount rate

26. Costs savings
— Changes
— What does this mean for you?

27. Costs Savings
The Act provides for the Treasury to make regulations requiring
Insurers to report to the FCA with information about what?
a) Savings made due to the reforms within the Act
b) The impact of the savings made on premiums charged
c) None of the above
d) Both of the above

28. D is correct.
Insurers could have to report to the FCA
information regarding savings made as a result of
the reforms and the savings made on premium
charged.

29. Summary
— Introduce new tariff scheme with lower payouts for injuries
— New system for calculating the discount rate on injury claims
— Ban pre-medical offers from insurers
— Increase the small claims limit for RTA claims to £5,000 and
limit for other PI claims to £2,000
— Insurers could be asked to report costs to FCA

30. Thank you
Matthew Harpin
Associate
t: 0121 237 3970
e: matthew.harpin@brownejacobson.com

31. James Fawcett, Partner
Freedom of Information Act requests –
the new pre-action disclosure

32. Information Law – why is it relevant?
— Every piece of recorded information might be disclosable on
request
— The fact that disclosure might be inconvenient or
embarrassing is no defence – generally information will be
disclosable unless an exemption applies

33. What is the aim of the FOIA?
— To create a more open government based on mutual trust
— Access is designed to ensure public authorities are
accountable to tax payers for their actions
"Openness is fundamental to the political health of a modern
state. This White Paper marks a watershed in the relationship
between the government and people of the United Kingdom. At
last there is a government ready to trust the people with a legal
right to information."

34. Really???
— What plans are in place to protect the town from a dragon attack?
— Please list all types of animals you have frozen since March 2012
including the type and quantity of each animal?
— How much money has the [NHS Trust] spent on pornography in the
last twelve months?
— How many holes in privacy walls between cubicles have been found
in public toilets and within council buildings in the last ten years?
— How many bodies are there in mortuaries that have been unclaimed
for ten years?

35. Requirements of a valid request
— A valid request must:
— (1) be in writing
— (2) provide a name and address for correspondence
— (3) provide a reasonable description of the information
requested
— If valid, a request must be dealt with promptly and in any
event within 20 working days

36. FOIA – Practical Considerations
— FOIA relates to information held at the date of the request
— No obligation to create information to respond to a request
— FOIA also applies to information held by third parties on behalf of
the body such as contractors
— Remember - FOIA is tantamount to disclosure to the whole world –
care is therefore required when disclosing information

37. FOI requests = evidence gathering
— Provides an opportunity to scrutinise the authority’s
procedures and identify areas of weakness
— Are there clear discrepancies with other authorities? You
might not want to stand out from the crowd…
— Potential for Claimant solicitors to use FOI requests to bolster
their position in a claim, or identify ‘soft targets’ in bringing
claims

38. Kennedy v Cordia (2016)
— Claimant slipped on snow and ice during the course of her employment as a
home carer during a home visit – issue around the adequacy of PPE
— Claimant’s liability expert included in his evidence information obtained by
his instructing solicitors relating to the practice of other employers through
FOI requests
Supreme Court:
“In such circumstances, it is, as a matter of fairness, incumbent on the solicitors
to disclose to the skilled witness and to the other parties in the litigation the
relevant material which they have assembled, whether or not it supports their
case. It is not clear in this case whether there was any undisclosed material”

39. Soft targets…
— If they don’t get you for your highways they’ll get you for your JK!
A Freedom of Information (FOI) request made by law firm JMW Solicitors also shows that
the number of reported potholes in some boroughs has increased by up to 172% over the
same period. Boroughs with the largest percentage increase in reported potholes include
Redbridge (+172%), Islington (+151%), Harrow (+116%), and the combined borough of
Richmond and Wandsworth (+100%).
Paul Breen, partner at JMW and head of catastrophic injury, believes potholes pose a serious
risk to life to motorcyclist and cyclists.
"If the council fails in its duty to maintain and repair roads and pavements, and someone
suffers an injury due to a pothole or other road defect, they are entitled to make a claim
for the pain and suffering it has caused.”

40. Highways COP – if you’re not compliant you
might get found out
— Around 75% (142) of the highway authorities that responded to the
RAC had already moved to a risk-based approach by Autumn 2018. A
further 15 (8%) said they were about to move to the new system or
were reviewing their existing practices.
— The most common response time to the most urgent problems is two
hours, with 79 councils looking to patch up the road within this
period. At the other end of the scale it can take some councils three
or more days to intervene.
— Whilst 37 local highway authorities said they would investigate when
a pothole was between 20-30mm deep, 26 others said the depth had
to be at least 50mm or more.

41. The scourge of Japanese knotweed
— Japanese knotweed (Fallopia japonica) is a weed that spreads rapidly. In winter the plant dies back to ground
level but by early summer the bamboo-like stems emerge from rhizomes deep underground to shoot to over
2.1m (7ft), suppressing all other plant growth. Eradication requires determination as it is very hard to remove
by hand or eradicate with chemicals.
— Civil claims:
Nuisance
 JK penetrated and encroached on the Claimant’s property
 Physical damage to property caused by encroachment
 The presence of JK on/in vicinity of the property interferes with the Claimant’s quiet enjoyment, or use and
enjoyment, of the property
Negligence
 Awareness of JK on authority land adjacent to the Claimant’s property
 Allowed JK to grown on authority land when this posed a foreseeable risk of encroachment on the Claimant’s
property
 Failed to take any or any adequate and immediate steps to eradicate the JK

42. The scourge of Japanese knotweed
— Damages:
 Cost of JK survey, treatment plan and guarantee
 Diminution in value of property
 Distress and inconvenience
 Claims can be significant (as can costs)

43. Claimant Solicitors
— At Charles Lyndon, our specialist Japanese knotweed lawyers have
successfully represented clients whose properties have been
affected by Japanese knotweed.
— JMP Solicitors won a court ruling on Japanese Knotweed which could
pave the way for home owners to get compensation from Network
Rail, local authorities and other major landowners.
— Japanese knotweed - Telephone Cobleys Solicitors Ltd

44. The legal position – Network rail
decision
— Claimants brought a private nuisance action against Network Rail on the basis
Japanese knotweed had encroached onto their land, causing a loss of
amenity of their properties by reducing the market value
— No physical damage to the property
— Court of Appeal decision:
 the tort of nuisance is not to protect the value of property as a financial
asset but to protect the landowner in their use and enjoyment of the land
 in addition to the risk of future physical damage to the buildings, the
presence of the knotweed imposed an immediate burden on the Claimants.
As such burden clearly affected the Claimants' ability to fully use and enjoy
their properties - this was a classic example of interference with the amenity
value of the land.

45. The legal position – Network rail
decision
— Initial hurdle the Claimants had to overcome - Network Rail
had failed to carry out its obligation as a reasonable
landowner to eliminate and prevent interference with the
quiet enjoyment of the respondents' properties, causing a
continuing nuisance and damage.
— Key consideration – have reasonable measures been taken?

46. Response to claim/FOI requests
— Repudiation:
 The authority has adopted, and complied with, a policy for the management,
destruction and disposal of JK, which conforms to best practice.
 There is a clear plan for its management in place, namely:
– A schedule of treatment, with visits scheduled at intervals and dates
which conform to best practice – a spraying programme is in place, with
herbicide used twice yearly.
– The herbicide, dilution rates, and application methods used are
appropriate: RoundUp ProBiactive 360g.
– Treatments are carried out by operatives with appropriate qualifications,
training and experience.

47. Response to claim/FOI requests
— We have seen FOI requests made by Claimant’s solicitors
regarding treatment of JK on authority land – soft targets
— What should our response be/can we avoid providing
information?

48. Responding to a request – things to
consider
— Does the authority hold the information?
1. Is it already in the public domain or intended to be published?
2. Is the information available by other means, including by way
of the Trust’s publication scheme?
3. Will it take more than 18 hours/£450 to locate?
4. Is the request repeat or vexatious?
5. Is the request unclear or very wide?
6. Prima facie the information will have to be disclosed unless
one or more of the statutory exemption(s) apply(ies)

49. FOIA - Exemptions
— There are two types of exemptions. Absolute and Qualified
— Most of the exemptions provided by FOIA are “qualified” -
even if the exemption is engaged, the information requested
should be disclosed unless the public interest in withholding
the information outweighs the public interest in disclosing it
— Absolute exemptions are just that and the public interest test
does not apply
— Often more than one exemption is engaged. Where this is the
case, where practicable, set them all out.

50. Absolute Exemptions
— The absolute exemptions provided by FOIA are:
– Section 21 (information accessible by other means)
– Section 23 (security matters)
– Section 32 (Court records)
– Section 34 (parliamentary privilege)
– Section 36 (in relation to information held by the House of
Commons and House of Lords)
– Section 40(1) (subject access requests)
– Section 40(2) (where disclosure to the public would contravene
any of the data protection principles)
– Section 41 (information provided in confidence)
– Section 44 (disclosure prohibited by any enactment)

51. Qualified Exemptions
— The qualified exemptions provided by FOIA are:
– Section 22 (information intended for future publication)
– Section 24 (national security)
– Section 26 (defence)
– Section 27 (international relations)
– Section 28 (relations within the UK)
– Section 29 (the economy)
– Section 30 (investigations and proceedings conducted by public authorities)
– Section 31 (law enforcement)
– Section 33 (audit functions)
– Section 35 (formulation of government policy)
– Section 36 (prejudice to effective conduct of public affairs)
– Section 37 (communications with Her Majesty)
– Section 38 (health and safety)
– Section 39 (environmental information)
– Section 42 (legal professional privilege)
– Section 43 (commercial interests)

52. The Public Interest Test
— There is no definition of ‘public interest’ in FOIA (or in any other
piece of legislation)
— Guidance from the IC says that it is something which serves the
public interest. It is not something which the public is interested in
— A qualified exemption can only apply where the public interest in
maintaining an exemption outweighs the public interest in disclosing
it or confirming or denying it is held

53. Public Interest Test – Relevant factors to
consider
— Promoting transparency and providing the full picture
— Promoting public understanding
— Ensuring good decision making and standards of integrity are
upheld
— Ensuring justice and fair treatment for all
— Ensuring best use of resources and fair competition
— Remove suspicion of wrongdoing

54. The Public Interest Test – Irrelevant
Factors
— Technical or incomplete information
— Poor record keeping
— Embarrassing Information
— Identity or motives of the requester (unless the
request is vexatious)
— Private interests
— A risk that the information will be
misunderstood/misused

55. Vexatious/Repeat Requests
— S14 FOIA allows authorities to decline to deal with
requests on grounds that they are vexatious or repeated
— The repeat exemption will apply where the authority has
received a previous request that is the same or
substantially similar
— The vexatious exemption applies in respect of requests
that are vexatious and will require you to consider the
identity and motivation of the requestor.

56. Thank you
James Fawcett
Partner
t: 0115 908 4784
e: james.fawcett@brownejacobson.com

57. David Maggs, Partner
Brexit

58. Deal or no deal?

59. Local Government’s response

60. Local Government’s response
— Procurement
— Immigration – adult social care & children’s services
— Information Governance – FOI & EIR
— Insurance
— TUPE

61. Local Government’s response
— As part of our Brexit planning we have identified a number of
contract/supplier related risks (summary below) and are now in the
process of identifying mitigations, updating our Business Continuity
Plans and contacting our key suppliers for information.
— Please can you review the below risks and let me know if any of
them (or any other risks) are causing particular concern to your
business and ability to continue to provide services to the Council
following UK’s departure from the EU.
— Additionally I would be grateful if you could confirm that you have
Business Continuity / Disaster Recovery plans in place and provide an
example if possible.

62. Local Government’s response
— Summary of supplier Brexit risks:
— • Increased costs (renewals/supplies/services)
— • Staff shortages
— • Sourcing and transporting supplies or critical parts – tariff issues
and border delays
— • Transport and immigration issues for staff or key sub-contractors
— • ICT or data held in the EU and GDPR considerations
— • Financial issues due to currency fluctuations, access to funding
and capital

63. Local Government’s response
— • Disruption due to law and disorder
— • Legislation, governance, reporting systems linked to EU abruptly
terminate or new arrangements fail
— • EU passporting – potential impact on suppliers ability to trade
across different EU countries

64. Local Government’s response

65. Local Government’s response

66. EU response

67. Practical consequences
— Analysis: How might a no-deal Brexit affect claims
inflation?

68. Practical consequences
— More claims?
— More admin.?
— More cost?
— Happier procurement?
— Happier Information Governance?
— Business as usual?

69. Thank you
David Maggs
Partner
t: 020 7337 1005
e: david.maggs@brownejacobson.com