INTRODUCTION

  The Association of Personal Injury Lawyers (APIL) is a not-for-profit organisation with more than 4,000 members across the UK, all of whom practise personal injury law on behalf of injured people. Our key objectives include:

— To campaign for improvements in personal injury law.

— To promote safety and alert the public to hazards wherever they arise.

— To promote full and just compensation for all types of personal injury.

  APIL has taken great interest in this issue from the outset, and has been a supporter of, firstly, the Law Commission and then the Ministry of Justice in the work being undertaken in this area.

  Due to the remit of our organisation, the following comments relate to personal injury cases only, and our remarks are restricted to clause 10 of the new Third Parties (Rights against Insurers) Bill, along with two points relating to schedule one.

CLAUSE 10

Insurer's right of set off

  In relation to personal injury cases, this clause effectively means that insurers would be able to set off the amount of (for example) any unpaid premiums against the compensation payable to the third party.

  Most personal injury claims are of a low value (around £5,000 or less). Clause 10 presents a very real danger, therefore, that this insurer's right of set off could result in a compensation claim for personal injury being completely wiped out. Larger, more serious cases, including asbestos cases, could be similarly affected especially, for example, where a large company with a substantial unpaid premium becomes insolvent. We do not believe this can possibly be the intention of this legislation and we submit that an exception should be made for personal injury claims, with the following amendment to clause 10, paragraph 2, page 2, line 20, to read as follows:

"transferred rights, apart from a third party claiming damages for personal injuries or death".

  We submit that the principle for this is accepted in clause 9, paragraph 6 of the Bill, which makes a clear exception for cases of personal injury or death in relation to maritime law, and elsewhere in the law generally.

SCHEDULE 1, CLAUSE 3, SUB-SECTION 5

  This sub-section assumes that a defunct body which has either been restored to the register, or ordered to be restored to the register, is to be regarded as no longer defunct for the purpose of acquiring information. This does not reflect the reality of the situation as, in these circumstances, the restoration of defunct bodies is a legal device to enable a claim for compensation to be pursued. The restoration of the body is in name only.

  For this reason we submit that sub-section 5 of clause 3, schedule 1 should be deleted.

SCHEDULE 1, CLAUSE 4

  Sub-section 1(b) places an unnecessary restriction on the provision of information to third parties, which goes against the spirit of the Bill. Under the Civil Procedure Rules of parties to court proceedings there is, in fact, no automatic right to disclosure of insurance details. By using the device of referring to the Civil Procedure Rules, the Bill becomes subject to the courts' interpretation of CPR as case law upon it develops, or to any future amendment to the disclosure provisions of the civil procedure rules. Even now, for example, it remains unclear whether disclosure of insurance information can in fact be compelled under CPR. To achieve its purpose the Bill should provide its own mechanism for this, in place of the presently drafted Schedule 1 Clause 4.

January 2010