The defendant's voice

Lea Brocklebank looks set for a baptism of fire as she enters her 12-month tenure as president of the Forum of Insurance Lawyers. This is her first week as the insurance industry's chief legal lobbyist, coinciding as it does with Foil's annual general meeting where a quartet of guest speakers will start with the past-president of the Law Society and end with the current president of the Association of Personal Injury Lawyers.

While not exactly the sworn enemy of defendant lawyers, the latter is as close as it gets to opposition. However, both camps will be keenly anticipating the speech from the second speaker - head of claims management regulation at the Department of Constitutional Affairs, Mark Boleat - as he reveals exactly which bodies are exempt from the Compensation Act.

Although the exemptions have been widely reported in the press, Ms Brocklebank is reticent to comment on the issue. Yet when it is put to her that trade unions are expected to be exempt, she is quick to respond. "It's disappointing - I see no reason why they should be," she continues. "If they have a gold standard, then they will be good role models for claims management companies to follow. So I would have liked to have seen them leading by example and embracing regulation."

Ms Brocklebank argues that Foil's stance has always been that a level playing field must be established, although she reserves further comment on the subject until she hears Mr Boleat's speech.

It is clear that Ms Brocklebank is approaching her new role in the sure belief that not only is Foil arguably stronger than it has ever been but that it has never been more relevant. "Most of the changes that our members and their insurance company clients have had to contend with in the past decade have had their origins in legislation," she says. "In this forum, individual representation is ill-equipped to contend with the government and the powerful lobbies and political interests that influence it."

She adds that Foil has more than 1800 members that rely on it to voice their concerns to policymakers as well as informing them of any proposals, clarifications or legislative changes. "We are genuinely trying to promote a useful dialogue between the industry and policymakers," she explains.

Top of the agenda

The DCA has said it expects to publish its consultation paper on the low-value personal injury claims process next month, so what is her view on the current system? "Sadly, one of the failings of the present system remains that litigation and resolving claims pre-action is too expensive - costs are top of the agenda," she responds.

"The DCA is expected to launch its claims process review at the end of the year, and I imagine this review and the government's response will be one of the principal issues facing the market next year. The system needs streamlining in terms of process, cost and economies of scale, and Foil will be working with members to ensure that a fairer system for all is created."

She expects the DCA's paper to propose a shared responsibility for the retrieval of information rather than the current system, which permits both parties to carry out individual investigations. "The problem with the current system is that if a defendant's insurers want to make an early settlement proposal, they regularly have to rely on information gathered by the claimant," she says.

In lower value cases, Ms Brocklebank would also like to see uniformity in the type of information provided. "This could be achieved by using a pro forma that can be filled in by claimants to describe the injury and its consequences. This might also be extended to give guidance on whether a report should be obtained from a GP or from a medical expert," she explains.

Legal costs tariff

Another area in which she expects to be drawn into debate concerns the NHS Redress Bill, launched in October 2005 and currently undergoing amendments between the House of Commons and the House of Lords. "This relates to medical negligence cases and redress for claims initially up to £20,000," she explains. "It may introduce a tariff for the legal costs involved in advising claimants who are pursuing a scheme, as well as creating a new independent body to oversee the scheme. The system will operate without prejudice to the right to pursue a clinical negligence claim through the courts."

She says that while the types of claims falling under the proposed NHS redress scheme would not generally involve Foil member firms, it will be interesting to see whether the DCA looks to it as a model for its claims process review. "There are similarities between this and the type of approach advocated by the Association of British Insurers following its launch of the Care and Compensation initiative last year. The fact is that litigation remains too expensive."

Ms Brocklebank is keen to point out that her role as Foil president is not only to speak up for defendant lawyers and lobby on their behalf but also to pass on information pertinent to her members. As such, she highlights the latest edition of the Ogden tables, which - although not yet published - seem likely to inflate future loss claims slightly due to changing mortality rates.

These tables are used to make it easier to calculate special damages and the amount of loss of earnings in personal injury litigation. "There has also been quite a bit of speculation about whether or not the new tables will incorporate the employment effects of disability within the 'multiplier-multiplicand' calculation," she explains. "If so, this would be a change from previous tables and so Foil's members will be awaiting publication of the tables with interest."

This month, Foil's counterpart Apil called for further changes to the industry's compensation scheme, allowing interim payments to be made to mesothelioma sufferers. The claimants' legal lobby said that if the Financial Services Compensation Scheme makes a payment first and completes its enquiries second, victims will at least receive their compensation promptly.

Asked whether she agrees with this call, Ms Brocklebank points first to the strong working relationship that Foil has with Apil, using the example of her opposite number being invited to speak at Foil's annual general meeting to illustrate this.

She says: "We hold similar objectives in that we both want a fast, fair and efficient claims system. With regard to mesothelioma cases, Foil is sympathetic to these types of cases but we are not convinced there is any particular need to speed up the process further. The HM Revenue and Customs process for tracking employers has already improved the process, enabling many mesothelioma cases to be dealt with within three months."

Cost wars

It is obvious that Ms Brocklebank's remit under Foil will be dominated by costs or, as she puts it, the "cost wars". Is this attitude reflected in her work as a partner at Bond Pearce? She responds by saying she strongly advocates mediation as a means to gaining early settlement of claims and, therefore, reduced costs, and believes this is an issue she may well promote to Foil's members over the next 12 months.

"It is something I would personally like to see the industry do more of. The process is quicker, cheaper, and it is a safe way of negotiating, as the parties have control over the outcome. At the early stages of a claim, those acting on the defendant's side are wholly dependant on the quality of information that the claimant's team provides. Mediation accelerates this process and is a way of resolving disputes at a much earlier stage than might normally be the case."

She concedes that claimants may argue for the need to obtain more evidence first but that in lower value cases it makes sense to mediate as early as possible when there is just enough evidence. "It is not particularly beneficial to either party if mediation occurs just before a trial, as it negates the idea of saving costs. The benefit to defendant insurers is that costs are reduced, as some costs are linked to the length of the process and don't add much in terms of helping the parties reach an agreement," she says.

"When one party is cautious and tries to go down every possible line of enquiry, it drags out the whole process. A balance between sourcing evidence and streamlining the process needs to be struck and mediation has a part to play in this."

Some commentators believe that shrinking insurer panels, consolidation and the downward pressure on costs has meant that some law firms are increasingly looking to recruit unqualified litigators as they are cheaper. Ms Brocklebank says: "Surely it is more appropriate that the expertise and skill set of lawyers - be it qualified or unqualified - fits with the job in hand. Some aspects of managing cases are more routine and it is nonsense for experienced lawyers to carry out these tasks.

"For several years, our members have recognised the benefits in employing paralegals and trainee legal executives who are often good at what they do. Foil's membership is open to both qualified and unqualified lawyers."

Ms Brocklebank appears in no way daunted by the task ahead of her and, if she is, it seems she has plenty of support at hand to pursue existing Foil work as well as tackle new issues as they emerge. For example, she reveals that her presidential predecessor, Neil Mclaughlin, is awaiting a response from the Department of Health on concerns he raised earlier this year with regard to the sourcing of medical records.

"The DoH told GPs that in cases worth less than £10,000, an individual's medical records would no longer be disclosed routinely unless a medical expert requested them," she says. "We want the DoH to state that the decision to obtain records rests with professional advisers and insurers - and if they choose to exercise that right, the GP practice cannot resist on the basis of the DoH agreement."

Under Ms Brocklebank, it would seem Foil's members can rest assured that their main interests will be closely looked after.