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Responding to a request for a Compulsory Conference

Responding to a request for a Compulsory Conference

by Kate Denning Google+

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

In claims regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and the Motor Accident Insurance Act 1994 (Qld) (MAIA) any party may ‘call’ a Compulsory Conference (conference).

So, you’ve been involved in a matter for some time now and another party calls a conference. What do you do?

Here’s our list of suggested ‘do’s’ and ‘don’ts’:

The Don’ts

Ignore the request

If a request for a conference is made, a response should be given within a reasonable timeframe. What’s ‘reasonable’ will vary for each matter, the number of parties involved and the time of year. For instance, if it’s October and parties are trying to arrange a mediated conference in a multi-party dispute for December, it would be helpful for all the parties to provide their availability within a day or two, to lock down a date.

Whenever a request for a conference is made, we should consider it possible that all communications exchanged between the parties thereafter could end up annexed to an affidavit in a Court application. If there’s a gaping whole in a chronology showing no response to a request from one party – that party should expect embarrassment at the hearing of the application.

Immediately agree to the request

Unless you have instructions from your client, intimate knowledge of the matter and you are confident that all outstanding steps, information and documents will be taken or gathered before a conference – do not just jump in and commit to a conference. Don’t agree to a conference just because there’s pressure from another party to provide an immediate response. This can be a trap that early career lawyers fall into and this kind of reactive advocacy could impact upon the outcome of the matter and the relationship with a client.

Cause unreasonable delay

If there are outstanding steps or investigations that should have been completed and they haven’t – don’t refuse to agree to a conference because that work hasn’t been done. A common object of each of the pre-court regimes is the early resolution of personal injury claims. Of course, we are all human (especially lawyers) and at times, some matters demand our attention over others.

A better approach could be to explain to the other party that you will need certain information or material in order to actively participate in a conference, sign a Certificate of Readiness or make a meaningful Mandatory Final Offer (MFO). Otherwise, consider suggesting a tentative date for a conference, proposing the matter proceed by way of informal conference or that a date for conference be scheduled within a defined timeframe.

The Do’s

Review the matter

The exchange of MFOs, Certificates of Readiness and the cost consequences that flow from MFOs, make holding a conference a step with serious consequences for clients and lawyers.

A Certificate of Readiness under the PIPA and WCRA, certifies that the lawyer (or the party) considers the party to be, in all respects, ready for the conference. In claims regulated by the MAIA – the legislation is more onerous – with the lawyer required to certify that ‘the party is in all respects ready for trial.

Some of the things to consider when reviewing a matter are whether:

  • all outstanding steps have been undertaken under the legislation.
  • all factual investigations and instructions from the client have been obtained.
  • adequate responses have been received from the Claimant, other parties or non-parties to all requests for information and documentation.
  • all necessary expert evidence has been provided.
  • the parties have undertaken disclosure.
  • all parties with a liability in contract, tort or under a policy of insurance have been joined to the claim.

Consider mediation

For multi-party disputes, it may be appropriate for a conference to proceed by way of mediation. A conference can proceed by way of mediation, ‘if .. the parties agree’. Parties are sometimes reluctant to suggest mediation. Perhaps this is because they’re concerned the other party/ies may think they really want the matter resolved or perhaps they’re concerned it could be seen as a concession of liability or risk exposure.

There can also be disputes about the contributions towards a mediator’s fee. Often a party who considers itself with no exposure will resist agreeing to meet their share of the cost of a mediator. This position might be justified, for instance, where one party is owed a contractual indemnity by another. However, these disputes can end up costing clients more in solicitor’s fees than the actual share of the mediator’s fee, so it’s best to stick to the real issues in dispute. Instead, make your attitude towards the claim known through Contribution Notices, liability responses or requests for particulars.

Of course, it’s not always appropriate to mediate. If the parties know that a matter is unlikely to settle at conference, it may be a cost that they’d prefer to avoid and reserve mediation for the litigated stage. Conversely, if the parties think a matter can be resolved because the parties are on the same page, then mediation may not be necessary.

Informal conferences

Informal conferencing can be useful where a party is not ready to participate in a conference under the legislation. The parties can agree to participate in an informal conference and agree to dispose with the requirement for a conference under the legislation to be held if the matter does not settle.

With this approach, parties don’t have the pressure of MFOs and Certificates of Readiness weighing upon the negotiations. Also, if the matter fails to resolve, they needn’t incur the legal costs of a conference at a later date.

Set a tentative date

In a multi-party dispute it’s a good idea for the parties to tentatively schedule a conference early in the matter to give the everyone a date to work towards. This is practical in multi-party disputes where claims may be regulated by two or more pieces of legislation. Also, with a date scheduled months in advance, it makes it difficult for one party to wriggle out with excuses. Medical examinations, factual investigations, requests to parties and requests to non-parties can all be worked into an agreed timetable.

Comments

The object of a conference is for a claim to be settled at an early stage, without the need for litigation. There’s no point in agreeing to a conference if the parties won’t be ready but one party should not cause unreasonable delay for the others.

For advice on insurance law matters, please contact us. Keep up to date with the latest news and developments in insurance law, by subscribing to our blog, InDefence.

BOOK A FREE CONSULTATION for advice and information about a personal injury matter by calling (07) 3067 3025 or contact us online.

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Kate DenningResponding to a request for a Compulsory Conference
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‘Actively Participating’ in a Compulsory Conference

‘Actively Participating’ in a Compulsory Conference

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

Parties to a Queensland personal injury claim are required to attend a Compulsory Conference (conference) and ‘actively participate’ in an attempt to resolve the claim, before proceedings can be started in a Court.

An exception is made for a party, that has a ‘reasonable excuse’ not to do so.

A variety of methods are used by parties and their lawyers to try to get the most out of a conference and it’s interesting to see how the meaning of ‘active participation’ is interpreted in practice.

Some of the methods that we see arise are:

1. Passive

In a multi-party dispute, it’s usually easy to identify the party who’s taking a passive role before the matter gets to a conference. The party may be non-communicative or just generally indifferent about the progress of the matter.

The idea that a party could be passive at conference is at odds with the requirement under the legislation for parties to ‘actively participate’. However, in certain circumstances, it’s appropriate for a party to adopt that position – they may have a ‘reasonable excuse’. For example, where a Respondent or Contributor has a reasonable suspicion of fraud.

For the remaining parties, it’s important that the passive party is identified prior to the conference and advice is provided to respective clients about the likely attitude of that party in negotiations.

If other parties see a significant exposure for the party taking a passive role, it could be useful to have some pre-conference discussions about liability, contribution or any other relevant issues. If you don’t, you might be surprised to find that a conference is a waste of time and money.

2. Aggressive

The Australian Solicitors Conduct Rules require solicitors to be, ‘courteous in all dealings in the course of legal practice’. So its unfortunate when aggression (as opposed to robust debate) is seen at conferences. Perhaps it’s an attempt to rattle the other person or, perhaps it’s because the aggressor isn’t familiar enough with the matter.

For those on the receiving end, it can feel like a personal attack and there’s simply no valid reason for this kind of conduct. It does nothing to facilitate the negotiation process. Complaints to regulating bodies may be a consideration depending on the circumstances.

3. Measured

Most conferences proceed with numerous offers exchanged, with those offers moving gradually towards an acceptable position. The advantage of this ‘death by a thousand cuts’ method of negotiation is that the client may feel as though they have remained in control throughout the negotiation process and have gotten the ‘best deal’, where a settlement is achieved. Of course, it’s possible that this approach may frustrate some opponents or their representatives, who are seasoned negotiators and believe that it’s best to just move the negotiations along more quickly.

4. Conservative

When information remains outstanding at a conference, one or more parties may decide it’s best to, ‘keep their powder dry’ and to make few concessions in the negotiations. When MFOs are ultimately exchanged, they may be far apart, with parties hoping to achieve a better outcome through a litigated mediation.

This approach might be appropriate in a case where, for example, neither party has obtained expert medical evidence about a subsequent injury. In such a scenario, the parties know that more evidence will need to be gathered prior to a trial but do not know if that evidence will help or hurt their case.

This approach is less likely to arise in a claim that is regulated only by the Workers’ Compensation and Rehabilitation Act 2003 (Qld), where orders about costs flow only from MFOs. In workers’ compensation claims, the parties are under pressure to make their ‘best offer’ at conference.

Where claims are regulated by the Personal Injuries Proceedings Act 2002 (Qld) and the Motor Accident Insurance Act 1994 (Qld), parties may feel that they can hold out for a better offer at a litigated mediation.

5. Surprise!

If you have ever been at a conference where surveillance has been revealed, you’ll understand this technique perfectly. Of course, documents and information that are required to be disclosed, should be provided on an ongoing basis in accordance with the legislation. Some innocent examples of late disclosure that arise may include providing file notes from telephone attendances with medical experts or witnesses just prior to, or, at conference (where late investigations cannot be avoided). If late disclosure obstructs the negotiations, then it may be appropriate for the party at a disadvantage to propose that the conference be adjourned and re-convened at a later date. Intentional deception of an opponent by a lawyer can amount to professional misconduct. 

6. Efficient

‘Can we cut to the chase?’

‘Can we split the difference’?

If you’re in a conference where opposing parties or their representatives are on the same page, then it’s likely that someone will try and move the negotiations along with questions like these. The difficulty with agreeing to this type of request, is that you won’t necessarily know if you could have achieved a better outcome by continuing to negotiate, by the exchange of more offers.

An efficient negotiator might also call for MFOs early in the negotiations. This may be done in response to slow movement in offers by the other party, to force the other party to make a significant concession. Where a claim is capable of resolution at conference, this technique may totally obstruct negotiations and actually backfire on the person calling for MFOs. It should not be done to bluff the opponent/s and of course, only upon instructions from the client.

Comments

‘Active participation’ can mean many very different things at a conference. It’s a good idea to tailor your approach for conference to your matter, your client, your opponent/s and for the advantages to be gained under the legislation regulating the claim.

To keep up to date with the latest news and developments in insurance and personal injury law, subscribe to our blog InDefence.

BOOK A FREE CONSULTATION for advice and information about a personal injury matter by calling (07) 3067 3025 or contact us online.

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Kate Denning‘Actively Participating’ in a Compulsory Conference
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Making a Mandatory Final Offer in Queensland

Making a Mandatory Final Offer in Queensland

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

by Kate Denning Google+

Introduction

In Queensland, parties to a personal injury claim are required to make a ‘mandatory final offer‘ or ‘written final offer‘ (MFO). An MFO is made at the end of an unsuccessful pre-court Compulsory Conference in claims regulated by the:

Here are just some of the irregularities that can arise with MFOs in Queensland claims:

No Mandatory Final Offer

Cost consequences flow from an MFO. Any cost orders ultimately made will depend on: the amount of the offers compared with any judgment; the legislation regulating the claim; offers made during the litigation (except in WCRA claims); and, in limited circumstances, case building that occurs once the matter is litigated. To avoid the potential for adverse cost consequences, a party may agree to participate in settlement negotiations on an informal basis only, so that they are not required to exchange MFOs (or provide a Certificate of Readiness). In multi-party disputes, this strategy may be appropriate for a PIPA Respondent that has been joined to a claim late in the piece. Otherwise, a refusal by one party to have a level playing field with the others for no valid reason, is likely to impact settlement negotiations.

Offers inclusive of costs

Under the PIPA and MAIA, where an offer is at or below the ‘upper offer limit‘, parties are required to make offers which are exclusive of costs. Otherwise, parties are permitted to make MFOs which are inclusive of costs.  These types of MFOs should be made with caution.  Offers which are inclusive of costs have received unfavourable treatment by the courts. The difficulty with these types of offers, is that there’s no way for a court to identify from the MFO the amounts allowed for damages and costs.

Offers fixing an amount for costs

A Respondent may make an offer which fixes an amount for costs. The advantage of doing so is that, if accepted, the Claimant has agreed to an amount for costs and no further negotiations are necessary. However, where an offer fixes costs and that offer is rejected – a question might arise later on about whether the Claimant was justified in rejecting it because the allowance for costs was too low. As with offers which are inclusive of costs, these types of offers should be made with caution.

Offers between Contributor and Respondent

Under the PIPA, parties to a contribution claim are not required to exchange MFOs. However, under the WCRA, both Contributors and Respondents are required to make MFOs. The result of this is that for claims regulated by both the WCRA and PIPA, PIPA Contributors may choose to make no offer towards settlement during pre-court negotiations, as a matter of strategy. It may be in the interests of a PIPA Contributor to take a passive role in the claim and see if the other parties will reach a compromise without any offer from them towards a settlement. However, in a claim where a PIPA Contributor has significant exposure, this approach may simply compel the parties to litigate.

Joint MFOs

For claims regulated by the WCRA, costs only flow from the MFO. So, where a claim is regulated by the WCRA and PIPA, the Respondent and Contributor/s in the WCRA claim will be reluctant to make an MFO of $nil. The result is that at Compulsory Conferences there is more pressure on the WCRA parties, than the PIPA parties, to make an appealing MFO to a Claimant. Conversely, if a WCRA party has made reasonable attempts to resolve a matter during the pre-court stage, then they may be reluctant to co-operate with a PIPA party that is keen to negotiate well into the litigation.

Attaching a Release and Cost clauses

Care should be taken when drafting the MFO. If the MFO refers to a Release and a copy of that Release is not attached to the MFO, that may affect the validity of the offer. For claims under the PIPA and MAIA, where a Release is attached and there is otherwise no obligation upon a Claimant to sign a Release, a question may arise about whether the terms of the Release affected the acceptability of the Respondent’s offer. Consideration should also be given to the wording of any clause about costs in the MFO. Particularly if the MFO refers to costs being payable in anyway other than ‘in accordance with the’ relevant legislation regulating the claim.

Clash of the MFOs

MFOs are ‘exchanged’ and so parties do not usually know what offer/s will be made by their opponent/s. In rare circumstances, two parties may make MFOs to each other which are less favourable than the offers put to them.  For instance, Company X offers to settle a Claimant’s claim for $100,000 but the Claimant offers to settle her claim for just $80,000. Parties may attempt to address this by adding a clause to the MFO to the effect that the document serves as an acceptance of any offer that is less/more than the offer made by their opponent.

Expiring limitation period

A Claimant must commence proceedings within 60 days of a Compulsory Conference and cannot start those proceedings while the MFOs are open. MFOs must stay open for 14 days (10 business days for WCRA claims). There is no discretion under the legislation for that time to be abridged. So, for claims regulated by the PIPA and MAIA, a Compulsory Conference must be held no later than 10 business days prior to the expiration of a limitation period, to allow the MFOs to expire and the Claimant to commence proceedings.

Getting it right

There’s no set formula for getting your MFO ‘right’. However, each piece of legislation has its own nuances. It’s important to be familiar with the legislation that regulates both your claim AND your opponent’s. Adequate preparation before a Compulsory Conference will facilitate negotiations and prevent confusion between parties and their legal representatives when MFOs are exchanged.

For the latest news in insurance and personal injuries law, subscribe to our blog, InDefence.

BOOK A FREE CONSULTATION for advice and information about a personal injury matter by calling (07) 3067 3025 or contact us online.

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Kate DenningMaking a Mandatory Final Offer in Queensland
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Insurers can be joined as parties to PIPA claims

Case note: Shapcott v W.R. Berkley Insurance (Europe) Limited & Anor [2015] QDC 102

Personal Injuries Proceedings Act Qld – PIPA – Section 16 PIPA – Insurance Contracts Act – PIPA Regulations – Contribution Notice PIPA 

Background

Mr Gary Michael (Michael) brought a claim for personal injuries against Raymond Shapcott (Shapcott) arising out of a massage and Atlas Profilax treatment.  That claim is regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Shapcott issued a contribution notice under the PIPA to Paul Camac (Camac).  Camac held a policy of insurance with professional indemnity insurer, W.R. Berkley Insurance (Europe Limited (Berkley).  Shapcott had no relevant policy of insurance under which he was the ‘named’ insured.

Berkley denied indemnity to Shapcott under the policy.  Shapcott proposed to issue a contribution notice under the PIPA to Berkley.  Michael consented to issue of the notice but Berkley refused. Shapcott made application to the Court for leave to issue a contribution notice to Berkley.

Issue

The central issue for determination was whether section 16(1) of PIPA was engaged, so as to make the Berkley a ‘contributor’.  Section 16(1) states:

‘A respondent who receives a complying part 1 notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the person a written notice (contribution notice)— (a) claiming an indemnity from, or contribution towards, the respondent’s liability’. 

Decision

No authorities were before the Court that had considered the meaning of the word ‘indemnity’ in the context of the PIPA.

As such, the Court considered other parts of the legislation noting that:

  • under section 27(1)(b)(ii) reference is made to an ‘insurer’ as a respondent.
  • under section 11(3) reference is made to the fact that an insurer under a ‘relevant insurance policy’ can ‘indemnify’.

Having regard to the way these terms were used in the legislation, the Court was satisfied that reference to ‘indemnity’ in section 16(1) could include reference to indemnity under a policy of insurance.

Shapcott highlighted that the Uniform Civil Procedure Rules 1999 (Qld) and the Civil Proceedings Act 2011 (Qld) required all matters arising from the same facts to be determined together – so there was no utility in refusing the application.  He also argued it would be of benefit to allow the parties to:

  • make proper investigations.
  • inform themselves of strengths and weaknesses of their cases.
  • participate in a compulsory conference and exchange mandatory final offers.

In a judgment delivered 22 May 2015, Dorney QC DCJ allowed Shapcott’s application.

Considerations

Given this decision, it will be interesting to see how parties manage PIPA claims involving indemnity disputes in the future.  Presumably the approach taken will depend upon the circumstances of each matter and the parties involved.

BOOK A FREE CONSULTATION for advice and information about a personal injury or contribution claim against you by calling (07) 3067 3025 or contact us online.

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Kate DenningInsurers can be joined as parties to PIPA claims
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.