At this year’s Forum of Insurance Lawyers (FOIL)' AGM, Howard Dean (pictured) was elected the forum’s president and announced his intention to support insurers and lawyers grappling with many headwinds – among them claims inflation, emerging markets and regulatory changes.
Speaking with Insurance Business, Dean, a partner at Keoghs, said he joined what is now ‘tomorrow’s FOIL’ around 1996 and has been a member of the association ever since. “I wanted to see what reforms were coming down the track that would affect my career, firm, and clients,” he said.
“During my career, I worked very closely with five former FOIL presidents and watched how they were able to inform and influence the debate around future reforms. I represented FOIL at CJC Working Group meetings on Part 36, Damages Based Agreements, Qualified One-way Costs shifting, Guideline Hourly Rates as well as the DCP.”
As a member of the Costs and CPR sector focus teams, he worked through reforms from Woolf and Jackson to the digitisation of civil justice – all bringing benefits such as increased transparency and access to justice at proportionate cost. In addition, he said, for many years, he has been a member of the market affairs team at Keoghs LLP, where he has helped shape a wide variety of policy areas impacting insurer and corporate clients.
“It was only natural that with all the policy experience I had, I stepped into the role of vice president, and then recently president of FOIL,” he said. Touching on what he considers the overriding theme of his presidency, Dean highlighted the pressing task of crafting a reforming agenda for a more transparent, proportionate and accessible claims environment benefiting all.
“FOIL’s project on the ‘Privatisation of Civil Justice’ will continue to look at the MOJ’s proposals on increased use of mediation and the CJC’s review of Pre-Action Protocols,” he said. “While the benefits of reform are welcome, they do come at the cost of ‘frictional litigation’ over interpretation and application of new rules and regulations.
“We need a better, quicker, and less expensive way of resolving ‘frictional issues.’ A process that avoids significant use of court resource where the rule makers provide clarification of interpretation and application.”
The arrival of a new Labour government has brought with it a completely different policy focus, he said, but so far FOIL has seen a keenness to engage with the industry, which presents opportunities. “I am keen, as part of my role, to ensure that FOIL forges a good working relationship with Labour, ensuring that FOIL’s voice is heard during important reform discussions,” he said.
With a strong background in civil justice reform, Dean has a clear picture of the biggest challenges facing the space today – chief among them the increasing costs of claims. At a macro level, he said, the delays in the civil justice system prejudice all parties and their lawyers as it is difficult to obtain timely directions, and the evidence needed to enable the parties to resolve the dispute. As such, significant costs are wasted when the parties are informed there is no judge or court available the day before a hearing is due to take place.
At a micro level, in personal injury claims, FOIL sees valuable court time needlessly being taken up on the same issues on a daily basis. “By way of example,” he said, “the time courts spend on hearing arguments and determining the hourly rate one party is allowed to recover from another. The introduction of fixed hourly rates would instantly free up valuable court time to determine issues of more importance. It would provide certainty and predictability to practitioners and clients.”
As to whether he believes the market is well-placed to mitigate these challenges, Dean noted that the claims landscape is changing for the better through:
The digitalisation of the court process holds out the prospect of an improved service in the longer term, he said, but up until February 29 2024, the functionality to enable making general applications was not available. Initially, it was only available for cases in Early Adopter courts before being released nationwide later in the year.
“This will assist in reducing delays provided there is sufficient judicial resource to meet the demand. FOIL consider it unlikely that we will see the benefits in the short to medium term,” he said. “However, there is only so much the market can do to mitigate the challenges it faces. It is important that government recognises its role in helping to reduce claims costs by adapting policy changes, so that consumers do not suffer the impacts.”
Identifying what’s at the top of his agenda, he emphasised the role FOIL has to play in helping its members respond to and influence continuing reforms in the civil claims process. Over the next year, he said he expects to see ongoing reform around costs and litigation funding, ADR, online claims portals, digital case management and PAPs. Further process reform is also expected in Scotland, Northern Ireland, and the Republic of Ireland.
“With a new Labour government focusing on other reform areas to date, their intentions when it comes to civil justice reform are largely unknown, and I suspect they are still developing their policies in this area,” he said.
“We, therefore, need to ensure that FOIL stays adaptable and utilises its position to bring evidence to government officials on the impact of challenges faced by the industry, as well as potential solutions to those challenges which government can adopt. One of the things that is top of my agenda is looking to engage with parliamentarians and forge relationships with new MPs.”
As to what a successful tenure as president looks like to him, Dean highlighted that with 28 UK Sector Focus Teams made up of specialist lawyers from across FOIL's broad membership, FOIL is positioned to look forward and assess the risks of future reforms, to use its voice to inform the debate and influence the outcome.
“That is not only the case in England & Wales, but very much so in Scotland, Northern Ireland and the Republic of Ireland as well,” he said. “Their importance to our members' businesses and those of our insurance clients cannot be understated.
“A successful tenure would be supporting FOIL to continue to use its voice to the benefit of its members and the wider industry, to support positive reform to the benefit of members and consumers, and to have built relationships with parliamentarians.”
