Newsletter Autumn 2018

How to assess whether an insurer’s outlay amounts to a failure to mitigate? - Barnaby Large

We are all familiar with concepts of mitigation within the field of civil litigation. One of the clearest examples has been considered time and time again within the field of credit hire, particularly for pecunious claimants, whereby the costs associated with the hire agreement can be assessed against spot hire rates.

But where a vehicle is written off and an insurer’s outlay is made, how does a paying party assess whether the outlay fairly reflects the value of the vehicle?

Are parties to turn to showrooms to assess what the make and model of vehicle sharing the same characteristics is being marketed for? Do they consider statistical information concerning sales of vehicles? Do they consider the appointment of a valuer?

Clearly the obtaining of a professional valuation provides the most persuasive evidence, but instruction of experts can often prove prohibitively costly, particularly where disputes are assigned to the small claims track or the range of opinion between the parties is relatively narrow.

Further, whilst assessment of statistics provides valuable qualitative data, the sources of reliable information being freely available and compiling the same is no easy feat.

In addition, marketing data is unlikely to inform of the true value of a vehicle, bearing in mind showroom prices are invariably open to negotiation.

For decades the insurance industry has relied on three guides to assess valuation for the purposes of their outlays – Glass’s, Parker’s and CAPcalc. The Guides utilise vast quantities of statistical data and professional opinion to provide indications of a vehicle’s true value prior to an index accident for which adjustment for mileage can be utilised.

The Financial Ombudsman’s Service has had significant dealings in insurers’ outlays in relation to complaints between insurer’s and their insured. The FOS is clear that insurers’ should make use of all three guides and has awarded compensation for an insureds in the past when only one guide has been used (see Case Study 136/11 Ombudsman News, September 2016).

It is unsurprising that the FOS is of the view that an insurer’s offer must be reasonable in light of them all three guides and an offer should disregard any one valuation which is significantly out of line with the others.

Assessment should generally be made in relation to a guide’s retail value and the FOS would expect an insurer to make enquiries with the Guides’ compilers to clarify whether any unusual features have an impact on a vehicle’s value (see Case Study 66/02 Ombudsman News, December 2007/January 2008)

The FOS is of the opinion that little weight can be placed on forecourt prices advertised in local papers and internet sites, as these are widely understood to be too high and only a starting point for negotiations (Case Study 132/11, Ombudsman News, March/April 2016).

However, whilst the FOS has set down relatively clear expectations, there appears to be limited caselaw on the point.

The issue arose at first instance in the case of Asquith v Kirby which recently came before the County Court at Southampton.

The Claimant’s motor vehicle had been declared a write off. The insurer obtained a report which noted a figure Guide figure of £14,890 but the report also included a reference to six comparable internet sites advertising vehicles ranging from £14,696 - £17,850. The insurer considered the six comparables better reflected the market and paid outlay based on £17,500 valuation which it sought by ways of a subrogated claim against the Defendant.

The Defendant’s insurer objected to the valuation and the matter came before the Court to determine whether the Claimant had mitigated her loss.

The Court reduced the sum claimed to the Guide figure. In doing so it conceded that the FOS’s approach in favour of use of the Guides represented a better reflection of the true value of the vehicle, as a purchaser would invariably look to reduce a forecourt price through negotiation and whilst six comparables were available from the internet searches utilised in the Claimant’s insurer’s report, the Guides were themselves based on a much greater amount of data.

The decision is of course not binding but offers some insight into the approach of the courts to these matters.

When the Battle is Only Half Won: Enforcing Tribunal Awards - Barnaby Large

This seminar endeavours to provide an analysis of the general methods of enforcement of Tribunal awards and procedure associated with this. It does not address equitable receivers, attachment of earnings or second stage enforcement by orders for sale or through insolvency.

In place of ‘Creditor’ or ‘Claimant’, these notes use the term ‘Employee’ which is intended to refer to a person with the benefit of an employment tribunal judgment or order awarding compensation in their favour. As a judgment or order may be obtained against an employer or third party (in Equality Act claims for example), ‘Debtor’ is used for the sake of convenience.

Click here to read the full seminar

FDAC – THE FAMILY DRUG AND ALCOHOL COURT - Sara Chalk

The Family Drug and Alcohol Court National Unit was established in April 2015. The FDAC National Unit’s aim was to offer an alternative form of care proceedings for children who had suffered or were at risk of suffering significant harm because of parental substance and/or alcohol misuse. During the FDAC process the court is assisted by a specialist team and parents are given intensive support and the opportunity to demonstrate change. FDAC is known for its problem-solving approach.

The FDAC National Unit’s goal is to extend the benefits of the FDAC approach to more children and families. By the end of its first year, the National Unit helped to establish FDACs in 12 new local authority areas. Today, there are 15 FDAC Courts serving 23 Local Authorities with 10 Specialist FDAC Teams including one based in Southampton.

Southampton City Council started a pilot of the scheme in September 2015 with 6 families enrolled and following this pilot Southampton City Council created a dedicated in-house FDAC team which offers the FDAC process to families according to capacity.

WHAT DOES THE FDAC PROCESS INVOLVE

The FDAC process adopts the “Trial for Change programme” and is designed to give parents the time and support that is required to make and sustain change.

At the initial case management hearing the parents are introduced to the FDAC process and an initial intervention planning meeting is scheduled to take place within the next 5 days when an initial assessment is undertaken and a specialist intervention plan is devised. The purpose of this plan is to enable the parents to show the court the changes they are making or alternatively to highlight the lack of change being made.

A case management hearing then takes place within 2-4 weeks from the initial hearing at which time the parents formally sign up to the FDAC process and the matter is timetabled through to an Issues Resolution hearing at around week 20 of proceedings. Parents are legally represented in the usual way but the parents are also expected following the further case management hearing to attend fortnightly non-lawyer review hearings with the Judge and FDAC team to update the Judge as to the parents’ engagement and progress. At any point during the process, the Judge can request the lawyers to attend a non-lawyer review hearing. In addition to the non-lawyer review hearings there are regular intervention planning meetings held to review and update the intervention plan.

Throughout the FDAC process the parents receive regular therapeutic intervention and feedback from professionals. The parents are allocated an FDAC keyworker and are expected to attend weekly key work sessions and weekly alcohol and drug testing. There are a range of services which can be offered to parents by the FDAC team or associated services which can include motivational interviewing, Video Interactive Guidance, Narrative Exposure Therapy, Cognitive Analytic Therapy, substance misuse awareness and family therapy.

The FDAC process is intense and requires a huge commitment from parents with multiple meetings/sessions taking place each week all whilst ongoing assessments are undertaken. Sometimes the intensive nature of the FDAC process is simply too much and parents disengage from the process.

WHAT IS THE CRITERIA FOR SELECTION

When making an application to commence care proceedings, the Local Authority can recommend that the case be heard in FDAC. A hearing is then listed before a specially trained FDAC Judge and the FDAC process is explained to parents.

WHAT IMPACT DOES FDAC HAVE ON THE 26 WEEK TIMETABLE

Initially the FDAC process adopts the 26-week timetable used in standard care proceedings. Many FDAC cases end within a timescale comparable to ordinary care proceedings. Due to the intensive review process of FDAC there can be clear evidence if parents are unable to make the changes required and this can lead to an early final hearing.

If parents can evidence that they have made progress an extension to the 26-week timetable can be granted by the Court if further evidence is needed before a final order can be made. In these cases, the FDAC process of key-working sessions and non-lawyer reviews will continue.  

DOES THE FDAC PROCESS WORK

According to the National FDAC Unit research shows that FDAC helped more parents stop misusing substances and deal with other issues. It is believed that the FDAC process channelled the parents’ motivation to change which helped achieve higher rates of unification in FDAC cases.

In December 2016, a report was published by Lancaster University following a research study which concluded as follows:

  • A significantly higher proportion of FDAC than comparison mothers had ceased to misuse by the end of proceedings (46% v 30%);

 

  • A significantly higher proportion of FDAC than comparison families were reunited or continued to live together at the end of proceedings (37% v 25%);

 

  • A significantly higher proportion of FDAC than comparison reunification mothers (58% v 24%) were estimated to sustain cessation over the five-year follow up;

 

  • A significantly higher proportion of FDAC than comparison mothers who had been reunited with their children at the end of proceedings were estimated to experience no disruption to family stability at 3 year follow up (51% v 22%).

WHAT IS THE FUTURE

The National FDAC unit aims to continue to expand the FDAC service across the UK. Currently Southampton City Council is the only Local Authority offering the FDAC service on the Western Circuit.

The question to be considered is should other Local Authorities be following suit and offering the FDAC process?

In discussions with other advocates I have heard many times the question of whether the FDAC approach be adopted for other issues such as mental health. If parents with substance and alcohol issues are given the opportunity for intense support and the opportunity to demonstrate change beyond the 26-week timetable should the same opportunity be given to parents with other issues?

Rule of court - financial remedy - Gary Fawcett, John Franklin

Two DJ’s have recently indicated that if a financial remedy order contains a recital whereby one party ‘agrees’ to do something, then provided the necessary elements of contract are present (certainty and consideration especially) then a separate action is needed to enforce that agreement.

In the Family Court Practice 2017 at p1447, there is a footnote to r 9.26 FPR headed ‘Preambles and drafting’ which reads:-

‘Where the agreed provisions contain terms beyond the jurisdiction of the statute, those terms should be set out as recitals and direct that they be made a rule of court and filed as such. This permits the terms to be enforced in the suit without the need to be bring a separate action’.  

However nowhere in the Red book can I find authority for that proposition.

Rules of Court generally means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal. Pre (codifying) Civil Procedure Act 1833 this referred to the rules that judges made for each court.

A rule of court, however, is a special order made in a particular case.

But where does that derive from?

The earliest reference I have found in the time allotted to this article, is the statute known affectionately as William III, 1697-8: An Act for determining Differences by Arbitration viz ‘Merchants, &c., where Remedy only by Personal Action or Suit in Equity, may agree that Award may be made a Rule of Court, and may insert the same in their Submission’.

That Act was considered in Re Smith and Service and Nelson & Sons 16 July 1890 (25 QBD 545) in which it was said:-

‘The effect of making a submission a rule of court was to enable the assistance of the court to be obtained in carrying on the reference after arbitrators had been appointed, and to enable the award of the arbitrators to be enforced as if it had been a judgment of the court.’

More recently there is a Practice Direction (Decrees and Orders: Agreed Terms) Family Division 26 September 1972 , [1972] 1 W.L.R. 1313 which amongst other things states:-

‘Where it is desired that terms of compromise should be filed and made a rule of court in lieu of being embodied in an order, the same procedure should be followed (GF: as for filing   an order with/without undertakings), and the terms, signed as above, must contain a specific provision that they are to be filed and made a rule of court’.

That practice direction replaced an earlier made on the 22 December 1966.

In Atkinson v Castan [1991] Lexis Citation 2704, the first issue was the ability of a court, (here the county court), to enforce an undoubted compromise between the parties without requiring the party wishing to rely on the compromise to commence fresh proceedings. In that case the order being enforced, contained an agreement whereby the defendants would remove a sycamore tree at their expense.

Woolf LJ said:-

‘That there is a long-established practice of compromising actions by making the agreement part of the decision of the court or, as it is often said, making it a rule of court is clear beyond doubt.’

Staughton LJ. cited from Jowitt's Dictionary of English Law, 1977, second edition, p 1596:

‘A rule of court generally means a rule of procedure. Sometimes, however, it means an order made by a court in a particular action or matter: thus a compromise of an action may, if approved by the court, be made an order of the court in which the action was brought. The making of a compromise a rule of court gives it the same effect as if the terms of the    compromise were contained in an order of the court.’

The conclusion is that if an agreement is made a rule of court then it can be enforced within those proceedings.