Legal disputes can be expensive and stressful to pursue or defend. Private individuals and businesses are now deterred more than ever from taking or defending threatened legal action because of the financial risk and uncertainty of the outcome. This is where ‘Legal Expenses Insurance’ can help.

Legal Expenses Insurance is unlike conventional insurance. Instead of a direct payment being made, Legal Expenses Insurance meets the costs involved when pursing or defending a claim. These costs include the appointment of solicitors, provision of legal advice, expert witnesses and expenses. In many cases the Legal Expenses provider will manage the claim from start to finish. The provider will set a limit for the indemnity which is the maximum amount to be paid out in the event of a claim. The client will be responsible for any costs incurred over the agreed indemnity limit.

This insurance is offered to both private individuals and businesses. Such insurance protects the individual or business in a wide range of disputes, including personal injury and contractual disputes. It is used by businesses when pursuing or defending their legal rights in a variety of business and employment related disputes as well as for property and tax protection purposes.

Legal Expenses insurance takes the stress out of appointing a solicitor and the worry about legal costs, allowing the client to focus on achieving a successful outcome.

How Can After The Event (ATE) Insurance Help You?

Traditionally Legal Expenses Insurance is taken out Before the Event (BTE) to cover any unforeseen events that may happen in the future. More recently, Legal Expenses Insurance is being taken out where an incident has already occurred which is known as ‘After the Event’ Insurance.

After the Event Insurance is a type of Legal Expenses Insurance policy that provides cover for the cost of the pursuit or defence of litigation, a policy purchased after the cause of the legal dispute has come to light.

As the policy is only taken out after the event has occurred, every policy is based on the attributes of the individual case with the insured paying a premium for a set amount of legal fees which can be ‘topped up’ as required. Premiums are usually available on a deferred and self-insured basis or alternatively are dependent on success. This means that the premium is only payable at the conclusion of the case, and then only if the case is successful.

If you would like to know more about Legal Expenses Insurance or After the Event Insurance, either as an individual or for your business, please contact us.

The EAT in Dunedin Canmore Housing Association v Donaldson has held that it was perverse for the tribunal to have refused to award costs where the claimant’s assertions that she had not disclosed details of her compromise agreement in breach of a confidentiality clause were false.

The claimant brought proceedings for breach of a compromise agreement, claiming she had not been in breach of a confidentiality clause. The tribunal rejected her evidence and found she had made disclosures to two people. Nonetheless, it declined to award costs against her as it took the view that it was necessary for her to bring proceedings as the employer had alleged that the claimant had breached the clause.

The EAT disagreed and observed:

• there was no basis for the view that proceedings were ‘necessary’ or that the claimant had no other alternative but bring proceedings where she knew her assertions were false;
• the fact that the claimant was a lay person was irrelevant – what mattered was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably.

Because she had not approached the case honestly and reasonably, the EAT reversed the tribunal’s decision on costs and ordered the claimant to pay her ex-employer’s legal costs.

This case follows the EAT’s earlier judgment in Daleside Nursing Home Ltd v Mathew which held that it was perverse for a tribunal not to award costs where the central allegation of racial abuse was a lie.

www.DanielBarnett.co.uk, 1 September, 2009

Organisations such as the Ministry of Defence (MOD) and Foreign Office will no longer be able to automatically rely on national security arguments to ensure that employment tribunal cases are heard in private after a ruling by the Employment Appeals Tribunal.

The Equality and Human Rights Commission part funded the case in which a serving member of the armed forces has claimed he was subjected to discrimination and physical and verbal racial abuse from colleagues while serving in Afghanistan as a member of a specialist unit in 2007. He took action against his employer, the MOD.

The MOD, however, responded by making a successful application for the case to be heard in private, due to issues of national security. The claimant challenged this decision on the grounds that it disproportionately interfered with his right to a fair hearing, under Article 6 of the European Convention on Human Rights and the Human Rights Act 1998.

The Appeals Tribunal recommended that part of the hearing should be held in public but held that part will be held in private. Justice Underhill said that it was “expedient” that any part of the hearing dealing with the issues in Afghanistan be heard in private as there was “a real risk to operations carried out”. However, the part of the complaint dealing with the matters in the UK “if it can be practically dealt with in public should be”. The Tribunal also held that how the armed forces handled complaints of discrimination should be in public.

Justice Underhill said that any party seeking to justify a closed hearing bears a “heavy burden” to justify any restriction and that “tribunals should not abdicate their responsibilities as soon as national security is invoked”.

John Wadham, Group Director, Legal at the Equality and Human Rights Commission said:

“This is a significant case with implications for future cases involving national security and, crucially, a person’s right to a fair and open hearing. The MOD can no longer assume that where matters of national security are involved, a hearing will automatically be held in private. In each case, the judge will have to balance the rights of people to have a fair hearing against applications for tribunal cases to be heard in private.”

“Given that we hope that part of this discrimination hearing will be held in public, it should serve as a powerful deterrent for any future acts of discrimination, as an employer knows that any of their or their employee’s actions could end up in the public domain.”

www.equalityhumanrights.com, 8 September, 2009

Fathers will be able to take six months’ paternity leave, the Government has announced.

The move will allow mothers to decide to return to work after six months and fathers to stay at home for the rest of the 12 months off allowed by law.

But plans to extend the total paid childcare period from nine months to a year look set to be shelved as the Government attempts to save money.

Government sources say the proposal is “under review” with no decision taken. In 2005, Labour said it would extend paid maternity leave to nine months – which it did in 2007 – with the “goal of achieving a year’s paid leave by the end of the Parliament”.

But the Guardian reported that aim would not now be implemented before the next election.

The additional paid leave would have cost £500m and given up to £1,600 to eligible families.

Labour Deputy Leader Harriet Harman, who is also Minister for Women and Equality, said: “Mothers will be able to choose to transfer the last six months of their maternity leave to the father, with three months paid.

“This gives families radically more choice and flexibility in how they balance work and care of children, and enables fathers to play a bigger part in bringing up their children.”

Labour is keen to demonstrate it’s family-friendly credentials ahead of a general election.

David Frost, Director General of the British Chambers of Commerce, said it would be a good idea to allow fathers up to six months’ leave “when the economy is working at full tilt” but it would harm businesses struggling with the recession.

“This is not the time to do it. It is a huge burden to plan for both a male and a female employee being away,” he told the BBC News Channel.

Miles Templeman, Director General of the Institute of Directors, said: “We strongly support new paternity leave rights for fathers, providing the Government ensures that the new system is simple for businesses to administer and there is no overall increase in the total amount of paid and unpaid leave parents can take.”

The Government says its scheme has been designed to “minimise” the impact on companies.

It estimates that take-up of additional paternity leave is less than 6% and that just one in 137 small businesses will be affected.

BBC News online, 15 September, 2009

Judgment was handed down today in the Heyday litigation. Age UK challenged the Default Retirement Age (DRA) of 65 in the Age Regulations arguing that Regulation 30 should be struck down since there was no clear and consistent social policy aim pursued by government. They argued the choice of a DRA at 65 was not proportionate. The EHRC submitted that 70 was the earliest appropriate age for a DRA.

The Government succeeded in respect of Regulation 30, but only just. Although the Court held that Regulation 30 (and a DRA in principle) was both legitimate and proportionate, there were powerful reasons why an age over 65 should have been adopted. Two days before trial the Defendant announced it would review Regulation 30 in early 2010. The court considered that if there had been no indication of this imminent review it would have granted the application. Likewise, if Regulation 30 had been adopted for the first time in 2009, the application would have been granted.

The Claimants lost on their argument that the Regulation 3 justification test should be struck down for want of clarity since the court considered the Government had spelled out sufficiently its social policy aims about the integrity of the labour market.

www.DanielBarnett.co.uk, 25 September, 2009

In Chief Constable of West Yorkshire Police v Vento (No 2), in 2002, the Court of Appeal sets out guidelines for awarding compensation for injury to feelings in discrimination cases.

The Court examined non-pecuniary loss for unlawful discrimination and set out appropriate bands for compensation for injury to feelings following a case in which policewoman Angela Vento claimed unlawful sex discrimination.

This week, the Employment Appeal Tribunal (EAT) has given its judgment in a different case (Da’Bell v NSPCC) and has said that ‘Vento damages’ should be increased to reflect inflation levels.

HHJ McMullen QC said in his decision that: the lower band should be increased to £6000 (from £5000); the middle band should now be £18,000 (up from £15,000); and the upper band should increase from £25,000 to £30,000.

The increases have immediate effect although the judgment was only handed down this week and has yet to be published in full.

www.croner.co.uk, 30 September, 2009

The European Court of Justice (ECJ) has ruled that a period of illness whilst on holiday does not count towards the minimum period of 4 weeks paid annual leave under the Working Time Directive (WTD).

Mr. Pereda, a specialist driver, suffered an accident at work around 14 days before the commencement of his allocated period of 4 weeks annual leave. The injury put him out of action for 6 weeks. His sick leave therefore almost entirely overlapped with his planned holiday but his request for an additional period of annual leave was refused. Under the ECJ’s ruling his period of sick leave should not have counted towards his holiday time.

The ruling emphasises that there can be no derogations from the entitlement to paid annual leave, the purpose of which is to enable a worker to rest and enjoy a period of relaxation and leisure. By contrast the purpose of entitlement to sick leave is to ensure that he can recover from being ill. Consequently, if a worker decides not to take annual leave during a period of illness, he must be granted a replacement holiday period to ensure that he is not deprived of his entitlement to rest, relaxation and leisure. This principle is likely to apply whether the employee falls sick before or during the actual period of leave.

www.Daniel Barnett.co.uk, 29 September, 2009