UK: Firms Must Re-Contact Certain Previously Rejected PPI Complainants By End April (Pinsent Masons Insurance Briefing: 19 February 2019)

Last Updated: 21 February 2019
Article by Colin Read, Nicholas Bradley and Alexis Roberts

Latest fortnightly round-up of insurance, legal and business developments with analysis and commentary from the insurance team at Pinsent Masons.

The main topics we're focusing on this week are:

Firms must re-contact certain previously rejected PPI complainants by end April

Firms must write to certain consumers who made unsuccessful complaints about payment protection insurance (PPI) and invite them to make a new complaint "as soon as reasonably practicable", the Financial Conduct Authority (FCA) has said. The regulator has published final guidance clarifying its approach to complaints involving regular premium PPI where the ongoing premium payments included an element of commission which was not disclosed, following on from its consultation of November 2018. The new guidance requires firms to assess whether or not repeated commission payments were disclosed to the customer on an ongoing basis and not merely at the point of sale; and whether customers should be compensated for this. Read more...

Supreme Court backs law firm in 'loss of chance' negligence case

The UK's highest court has overturned a Court of Appeal ruling that a law firm should compensate a former client for negligently failing to advise him to pursue a particular head of claim in an industrial injury case. The original county court judge said it was for the client to prove that the claim in question would have succeeded. The Court of Appeal overturned that, saying it amounted to conducting a "trial within a trial". The Supreme Court, in a unanimous judgment, has now found that the trial judge was entitled to come to the conclusions that he did, based on the facts before him. Professional negligence expert Michael Fletcher of Pinsent Masons, the law firm behind, said that the Supreme Court had strictly applied the test set out in the 1995 Court of Appeal case of Allied Maples Group Ltd v Simmons & Simmons when coming to the conclusions that it did. "This requires the claimant first to prove whether or not they would have pursued the lost claim on a balance of probabilities basis. In other words, the claim fails if the court concludes that they would only have been 49% likely to pursue the lost claim. Second, if the claimant overcomes the first hurdle, the prospects of success in the lost claim are then assessed by the court," he said "The Supreme Court also reiterated that, in assessing the first of these issues, the court can conduct a trial of the facts – in other words, looking at what the claimant would have done – but that it is inappropriate to conduct a trial of whether the lost claim would have succeeded. The judgment shows the range of issues that the court can take into account when determining the first point. Here, it concluded that the claimant could not honestly have pursued the lost claim, and so it should be concluded he would not have done so. The Supreme Court therefore found against him," he said. Read more...

'No deal' Brexit motor insurance confusion for Northern Ireland

Drivers in Northern Ireland are receiving conflicting advice about the preparations they need to take to ensure that they can continue to drive in the Republic of Ireland with valid insurance should the UK leave the EU without a formal deal in place. Last month, the Association of British Insurers (ABI) issued 'no deal' Brexit advice urging those who regularly drive on both sides of the Irish border to request a 'green card' from their UK insurer and carry it with them as proof of insurance. The same requirements will apply to UK motorists wishing to drive elsewhere in the EU, and EU motorists travelling to the UK. Belfast-based insurance law expert Barnabus Shearer of Pinsent Masons, said that the reports were "further evidence of the confusion motorists and insurers are facing. This confusion will disproportionately affect those insured motorists in Northern Ireland, whose livelihoods depend on daily cross-border travel.". Read more...

FCA sets out expectations for firms ahead of Brexit

The UK's Financial Conduct Authority has issued guidance for the firms and individuals it regulates ahead of Brexit, clarifying the areas where preparation is needed to meet new regulatory obligations. In this situation the authority said it intended to use the power that would be granted to it in the currently draft legislation published by the Treasury to ensure that firms and other entities did not "generally" need to prepare now to meet changes to their obligations connected to Brexit. The temporary transitional power would give the FCA the ability to delay or to phase in changes to regulatory requirements for a period of two years from exit day, currently scheduled for 29 March 2019. Despite this, the FCA said there were a number of areas where firms did need to begin preparations for the UK's withdrawal from the EU, as it would not be consistent with its statutory objectives to grant transitional relief. Read more...

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