General liability

In this chapter of our Annual Insurance Review 2023, we look at the main developments in 2022 and expected issues in 2023 for general liability.

Key developments in 2022 

Whilst the pre-action EL/PL injury claims portal for claims with a value of up to £25,000 has been with us for some time, the extension of a similar process for dealing with claims after issue in the County Court has only just arrived. Parties who have legal representation are now expected to issue claims and to file Defences and propose a timetable for disclosure of evidence in the Damages Claims Portal. Whilst the claim thereafter becomes more traditional, the trend towards filing and exchange of documents electronically is likely to continue.

The Court of Appeal decision in Belsner v Cam Legal Services on 27 October 2022 gave the Court the opportunity to examine the practice of Claimant's solicitors of securing deductions from damages secured by their clients, and entitlement to do so.  

Although the court disapproved of much of the current practice in connection with the retainer agreed between Claimant's and their solicitors, the court's decision that there was no fiduciary duty between the prospective Claimant and solicitor at the stage when terms of engagement were being negotiated meant that the agreement to deduct the agreed sum from the Claimant's damages was valid. The importance of this decision lies in the fact that the likely seismic effect of potential financial ruin for many Claimants' solicitors has been avoided.

What to look out for in 2023 

 Fixed legal costs have been a feature of money claims up to £25,000 for some time. The introduction and implementation of costs budgeting for claims of higher value has not been successful and has taken up considerable judicial time. The Civil Procedure Rule Committee has decided to extend fixed cost to many claims with a value of between £25,000 and £100,000.

The intention is that this change will entirely avoid costs budgeting at the beginning of the claim and costs assessment at the end and give both parties certainty about the costs they will have to pay if unsuccessful. It is likely that there will be several bands of costs, with fees being dependent upon the value and complexity of the claim.

It was originally intended to introduce this change in April 2023, but this has now been delayed and is not expected to be introduced until October 2023. The reason for the delay is not currently known but it is likely that the Committee will want to take the opportunity of correcting some of the anomalies arising from the current fixed costs rules.

Overall this change is likely to be welcomed, particularly by the judiciary and Defendants.

Written by Jonathan Drake.

Download our full Annual Insurance Review 2023 for more insights.