Half a million people were left exposed by the cyber attack on BA’s systems last year last year and BA could face a record fine for their “poor security arrangements”.

At a hearing at the High Court in London, Mr Justice Warby granted a group litigation order, paving the way for a mass legal action.

The Breach

Personal details, including payment data and addresses, were compromised by the hack, according to the Information Commissioner’s Office.

Part of the scam involved passengers being diverted to a fake website, through which their details were harvested by the attackers.

The airline informed the ICO and began to contact affected customers when it discovered the breach in September 2018.

The ICO announced in July this year its intention to impose a record fine of more than £183 million on BA over the breach, which is believed to have started in June 2018.

The Claims

There are currently more than 5,000 affected customers being represented by SPG Law and a further 230 represented by Your Lawyers Limited, who are bringing claims for compensation.

But the potential number of claimants is much larger and the judge granted a window of 15 months from the hearing on Friday for people to join the group litigation.

Alan Johal, director of Your Lawyers, said: “Today’s grant of a group litigation order is a key step towards justice for the hundreds of thousands of victims of the British Airways data breach scandal.”

Credit to the Evening Standard for the original article;

https://www.standard.co.uk/news/uk/green-light-for-thousands-of-ba-customers-to-make-compensation-claim-a4254696.html

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On 15 July, Gauke announced that the rate would rise from -0.75% to -0.25% on 5 August.

In a 77-page report dated 25 June 2019, the Government Actuary’s Department had recommended that the rate be set at 0.25%.

Responding to the government actuary as part of yesterday’s announcement, Gauke referred to the department’s analysis as “a starting point for my determination rather than an end point”.

Disagreement

In a letter to Gauke, Clarke calculated that a rate of 0.25% would have a 50:50 likelihood of overcompensating and under-compensating the average claimant.

The Lord Chancellor regarded this 50:50 split as an unacceptable compromise. As an example, he highlighted that it would give claimants only a 65% chance of receiving 90% compensation.

Gauke noted: “I consider this to give rise to too great a risk that the representative claimant will be under-compensated, or under-compensated by more than 10%”.

It was decided that claimant outcomes should be more heavily weighted towards over-compensation, consequently pushing the Ogden rate below the recommended 0.25%.

Gauke did concede that the decision “involves making a series of assumptions and judgements in considering the evidence and economic variables that apply” but insisted he should “build in further prudence” in “order to recognise that in any individual case one or more of those baseline assumptions may not apply”.

Credit to Insurance Age for the original article

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Bristol-based Open Bionics became the best-selling multi-grip bionic hand in the UK after launching its Hero Arm in 2018, and plans to use the funding to grow to international markets.

Using 3D scanning and 3D printing technologies, the firm has managed to drastically reduce the cost of building robotic prosthetics, allowing the bionic limbs to be covered by national healthcare systems in the UK and abroad.

“The Hero Arm is a custom made myoelectric prosthetic. This means users, amputees and people with limb differences below the elbow, can control their new bionic fingers by squeezing the muscles in their forearms,” Open Bionics co-founder Samantha Payne told The Independent.

“We’re delighted to have the support from the Williams F1 team. We’ve already spent quite a bit of time together, with us learning from their design and manufacturing techniques. It’s a fantastic relationship between two teams mad about great engineering.”

Open Bionics teamed up with Disney in 2015 to make its superhero-themed Hero Arm bionic arms, allowing amputees and people with limb differences are able to choose between different superhero designs, ranging from Marvel’s Iron Man to Star Wars’ BB-8.

Wearers of the Hero Arm can choose between different finger speeds and movements to allow them to pick up objects ranging from a small marble, to an entire shopping basket.

Matthew Burke, head of technology ventures at Williams Advanced Engineering, added: “Williams Advanced Engineering is excited to work with the team at Open Bionics and share our expertise in product development systems.”

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The bill was passed without any further amendments by a majority of 56. The Bill now passes back to the House of Lords to consider the amendments made during the Commons debates.

A full overview of the Civil Liability Bill and the changes made to date can be viewed and downloaded here.

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The claimant’s policy argument that a claimant should get more than fixed costs on late acceptance failed because the court focused on construing the rules. The claimant could not emulate Broadhurst v Tan (where a claimant gets indemnity costs for beating his offer at trial) because different rules applied. The court reiterated that the exceptions to fixed costs are extremely limited and are stated by the CPR.

The condensed explanation of the Court’s decision on the rules in this case is that CPR 36.13 does not apply to Section IIIA cases at all. CPR 36.20 does. Because CPR 36.20 says nothing to dis-apply CPR 45.29B or D in defendant’s late acceptance cases, those rules continue to apply. If a claimant wants greater costs he has to apply under the exceptional circumstances rule CPR 45.29J, but mere late acceptance will not amount to exceptional circumstances.

The court did not address find it necessary to address the alternative arguments in the event that CPR 36.13 applied.

The court answered the policy arguments in two ways. Generally, as defendant’s costs on late acceptance were capped at fixed costs, claimants should be on a similar footing. In specific cases where there may be a particular issue on the facts, CPR 45.29J was the remedy.

Exceptional Circumstances?

Exceptional circumstances were also addressed in the linked appeal of Kaur v Committee for the time being of Ramgarhia Board Leicester, which was also allowed. The Court of Appeal said the district judge had been wrong to consider that the claimant would have gotten greater costs if the defendant had accepted the claimant’s earlier, lower offer after its relevant period rather than making a higher offer. Therefore he had misdirected himself that there were exceptional circumstances.

This judgment gives the certainty that practitioners need on this issue. The stayed cases can now be resolved.

Thanks to Taylor Rose TTKW for the full article, which can be found here https://www.taylor-rose.co.uk/media/news/post/2018-07-23-hislop-v-perde-taylor-rose-ttkw-wins-definitively-in-court-of-appeal-on-fixed-costs-and-late-acceptance

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The Ministry of Justice (MoJ) has confirmed the government will delay its whiplash reform measures from 1 April 2019 to April 2020. The news was delivered in an MoJ response to the Justice Select Committee’s report on Small Claims Limit for Personal Injury.

In its response the MoJ wrote: “The government is acutely aware that the proposed approach will fundamentally transform how whiplash claims are handled and that any concerns around access to justice have to be addressed promptly.

“There will need to be extensive user testing in order to ensure that the system is easy to use for all user groups and that the guidance is clear.”

The MoJ noted that it was crucial the reforms, and implementation of the online portal, was “done right rather than quickly”. Adding: “This is why the government is now proposing for the platform to be ready for large-scale testing by October 2019 with the view to implementing the whiplash measures, including the rise in the small claims limit to £5,000, fully in April 2020.”

Reaction from stakeholders

The Association of British Insurers stated it was pleased that the MoJ “remains committed” to the changes. James Dalton, director of general insurance policy commented:

“Getting the implementation of these reforms right is absolutely critical if the system is to deliver fairer outcomes for claimants and millions of motorists so it is sensible to delay implementation until April 2020.”
Andrew Twambley, spokesperson for Access to Justice (A2J) also welcomed the delay but also criticised the overall changes:

“Creating, testing and implementing new user-friendly technology to deal with injury claims is enormously complex, and the government’s IT track record is dreadful,” said Twambley. “Ministers have yet to explain why a computer, built and administered by insurers, is better for injured people than a legal professional who is 100% on the side of that injured person”. “The MoJ has again ducked this question in its response to the Select Committee.”

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Peers defeated a proposed amendment from a former lord chief justice, the crossbencher Lord Woolf (Harry Woolf), to remove tariffs for limiting damages in the Civil Liability Bill. The vote, which followed more than two hours of debate, was won by the government by 218 to 205.

The vote at the report stage in the Lords will be a bitter pill to swallow for campaigners who had pinned their hopes on the upper house putting pressure on the government to amend its plans. It is now unclear what, if any, further efforts can be made to have the legislation further redrawn, as it moves onto the House of Commons.

The government did make one concession, pledging to bring forward at third reading an amendment to require the lord chancellor to consult the lord chief justice before setting or amending the tariff.

Full article on the Law Gazette – https://www.lawgazette.co.uk/news/civil-liability-bill-government-secures-crucial-win-by-just-13-votes/5066460.article

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Sean and Caroline Bondarenko are alleged to have fabricated a £10,000 claim against the five-star Caldera Palace Hotel in Crete after saying the resort’s food and drink made them ill.

The case comes after travel firms in the UK and Europe said holiday sickness claims by British tourists had increased by up to 700 per cent in the past 18 months.

In damning court documents, the Crete hotel has made a counter-claim against the Bondarenkos, saying they enjoyed their holiday and ‘consumed large quantities of alcohol’ when they were supposed to have been sick.

Atlantica Hotel Management Ltd claims the couple from Darlington, County Durham – who booked their holiday with Thomson – did not report any illness during their one-week stay in October 2013, and didn’t make their bid for compensation until three years later. The hotel chain says it has a dossier of Facebook posts which demonstrate the Bondarenkos enjoyed their stay. It is thought to be the first time holidaymakers have been taken to court accused of making a fake sickness claim.

Now the couple are trying to drop their claim. Thomson said: ‘UK holidaymakers should understand that if they make a fraudulent claim they could face prosecution at home or overseas.’ Mr Bondarenko, 47, said he and his 42-year-old wife had been ill, but only for a day or so. He added: ‘We would not have made a claim if the claims management firm hadn’t got in touch.’

‘We asked our solicitor to drop the claim in February because we felt uneasy about it, but they said we would have to pay legal costs.’

Mrs Bondarenko added: ‘I was horrified when I saw the court papers which listed all these negative things we were supposed to have said about the hotel.’

‘We never said any of those things. I rang the solicitor and she told me not to worry about it. We are terrified for our future and petrified we will lose our home.’ Their solicitors, Opes Law, said: ‘The allegations are unequivocally denied. Opes takes its duties to its clients seriously. When things occasionally go wrong, clients are advised to use our complaints policy and procedures to resolve any dissatisfaction.’

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Swansea County Court – 9 March 2017

A Claimant who suffered personal injury as a result of a road traffic accident had her claim dismissed under section 57 of the Criminal Justice and Courts Act 2015 due to fundamental dishonesty on her part and the Claimant was ordered to pay the Defendant’s costs. Whilst the Judge accepted that some injury was sustained in the collision, she found that the Claimant had exaggerated her symptoms. Liability had been admitted, but causation was placed in dispute.

Whilst Section 57 has been in force for nearly two years, there are still only a small number of examples where it has been applied.

Background

This claim arose from a road traffic accident on 15 April 2015. The Claimant suggested she was waiting at a roundabout when the Insured vehicle collided with the rear of her vehicle resulting in her sustaining personal injury.  Although the Claimant attended her GP some five days after the date of the accident, she only submitted a Claims Notification Form on 26 February 2016, some 10 months after the index accident. The examination with her medical expert took place on 18 March 2016, some 11 months after the date of the accident.

The Claimant had submitted a claim for vehicle damage to her own insurance company shortly after the accident, but at that time no injuries were reported. The Claimant had told her medical expert that she did not take any time off work as a result of the accident, but had been on restricted duties. She also told her medical expert at the time of his examination, some 11 months post accident, that she was suffering from ongoing travel anxiety as a result of which he recommended further review by a clinical psychologist.

Initial case management directions ordered by the Court required disclosure by the Claimant of her medical records and occupational health records, as well as requiring her to provide replies to Part 18 Questions raised by the Defendant. Although the Claimant successfully varied that order so that she did not have to answer those questions, she was invited by the Defendant to answer the questions nevertheless, which she did not do.

A review of the GP records revealed an entry which confirmed her attendance at her GP some five days post accident was disclosed. It recorded: “Whiplash injury last Wednesday.  At round about hit from behind.  Developed pain in right trapezius shoulder region since the weekend.  Not limiting activities.  Has good range of movement of neck and shoulder.  Advised typical mild whiplash injury”.

In contrast with this record, the Claimant advised her medical expert that she suffered a severe sprain/strain to the neck which resolved three months after the index accident. She complained of pain in the neck which referred into both shoulders stating the severity of the injury as severe.  She complained of feeling shocked and shaken, suffering sleep disturbance, travel anxiety and discomfort.

The psychological complications were described as severe. The Claimant also told the expert at the time of her examination that the travel anxiety/discomfort had not resolved and that symptoms had persisted at a severe level since the accident. In terms of effects on her lifestyle the Claimant told the medical expert that she was not incapable of heavy domestic chores and/or cleaning at any stage, but that she was restricted for a period of three months.  She said she was not incapable of bending, stretching and lifting at any stage, but that she was restricted in this activity for a period of three months post-accident.

The Claimant subsequently served a witness statement confirming that she intended to rely upon the contents of the medical report, but she then sought to suggest that aspects of the report were incorrect, that, despite what was recorded in the medical report she had not been restricted in her work duties at all, and she had not felt that the psychological symptoms were severe enough to require further treatment. Effectively, the Claimant sought to limit her claim to a three month whiplash injury, abandoning the claim for psychological injury.

As part of the Defendant’s case, social media evidence was served showing the Claimant to be on holiday on two occasions within the psychological injury prognosis period, which was 12 months. At the time of putting forward the stage two settlement pack the Claimant’s claim had been valued at £3,000 such value clearly taking into account a recovery period beyond only three months.

DWF represented the Defendant. Their full report of this case can be found here:

http://insurance.dwf.law/news-updates/2017/05/exaggeration-of-injuries-sees-claim-dismissed-under-section-57/

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