Addressing equity inequality in legal disputes
When the Supreme Court recently overhauled the rules that govern its procedure on the civil side by repealing the Supreme Court Rules 1978 and replacing it with Civil Procedure Rules (CPR) 2023, many practitioners were encouraged by the promise of the overriding objective to enable the court to deal with cases justly and at proportionate cost.
Dealing justly with a case will now include, so far as is practicable, ensuring that the parties are on an equal footing. Nowhere has equity inequality in legal disputes in private disputes been more on display than in claims for personal injury loss and damages resulting from the negligence of a third party.
Whether the negligence occurs at work, in a public space or building, on the road, in the air or at sea, the real dispute in reality involves a mega rich insurance company flexing its economic might over a vulnerable claimant often of meager means. Unscrupulous and unethical insurance companies have for decades manipulated the inefficiencies of the system under the old rules to exploit real victims of serious injury loss and damages.
Under the old rules, this grotesquely disproportionate dual was not necessarily a relevant factor and was often disregarded in servitude to established British system of values.
Our Supreme Court’s hands were constrained under the old rules by ancient and antiquated assessments of the value of injuries people have sustained due to the negligence of another.
The cases in the UK and in the region have for decades been roundly regarded as ridiculously low when compared to other modern jurisdictions and woefully inadequate when compared to the actual loss of life, livelihood and the likelihood of ever returning to anywhere near your former self.
Prior to the introduction of the CPRs, the court could and often did disregard the fact that in most cases the loss would have to be paid by a multi-billion-dollar insurance company with annual net profits that would make the GDP of some developing countries blush.
Under the CPRs, dealing justly with a case would also include dealing with the case in ways that are proportionate to the financial position of each party. Naturally under the new rules, one would expect the courts to consider the insane profits of these companies as an integral component of an insured defendant’s financial position.
Ordinary citizen are compelled under penalty of fines or more serious punishment to purchase insurance policies for, let’s face it, risks that rarely occur.
Lawmakers pander to these industry giants by tweaking and refining our obligations to purchase insurance for driving on the road, for operating a business, for owning or building a home, practically every aspect of life as a law-abiding citizen. However, they seem to turn a blind eye and deaf ear to whether these licensees actually fulfill their obligations under policies honorably or at all.
Taking a matter to court and all the way to trial has always been the least desirable option for persons who are injured, out of work, burdened with mounds of medical bills, compounding their already seemingly unmanageable mountain of debt.
It is objectionable that insurance companies should be permitted to manipulate the system to delay or avoid their obligation to indemnify under a valid policy, especially where the insured would have already admitted liability and reported the matter to them for settlement.
In reality, there is no equity equality between a person and an insurance company when the person’s car was wrecked and he/she has to come out of pocket for repairs or rentals while the insurance company sits on its mounds of cash, conducting nebulous investigations, the sole purpose for which is to pay less than what you deserve.
There is no equity equality in a dispute between an injured self-employed person with zero income in the weeks, months or years after a debilitating injury and a multi-billion-dollar insurance company.
There is no equity equality between a person who is injured or the dependents of a person killed, and a profit centric insurance company who shamelessly employs the same five tier negotiation strategy of first the sinister attempted seduction away from seeking independent advice, then the quick pittance offer to test the claimant’s level of desperation, followed by bad faith delay tactics, then finally a “take it or go to court” revelry before they go back to raking in premiums and profits.
With malice dripping from these weapons of negotiations, these companies would outlay tens of thousands of dollars in their own legal fees rather than increase a final offer by a relatively small amount, inexplicably denying claims their insured reported to them to settle for some perverted, reprehensible, “knee on the neck” gratification.
This is something that legislation and regulators must take seriously. We are licensing these companies year after year without holding them accountable for whether or how they handle claims.
Unfortunately, the delays in the court under the old rules, the inadequacy of the assessments of damages in cases decided under those rules, were weaponized by these profit centric industry bullies which they used to disincentivate potential claimants in a mocking and braggadocious take it or go to court hard stance.
I will work closely with any government willing to take a look at this shug-industry. We have to look at how these tactics disproportionately affect middle to low income claimants.
How often do we see premise of prominent businesses raising from the ashes of a fire with the same “lightning” speed with which they burned to the ground. Meanwhile, a person who loses a limb or the children of a parent who lost his life are left to languish in court because they refuse to accept the gross undervalue of their loss which the big bucks insurance company are determined to impose on them.
Despite the major moves towards equity equality of claimants under the new CPR, we need government to take a look at this. We pay premiums for policies under penalty of statute, which tells us the minimum terms we must pay for, the strict time frames within which we must have a valid policy, yet we have no “in kind” statutory mandate that claims must be paid under those policies within a prescribed period.
Hopefully, as the Supreme Court continues to make gigantic steps towards improving its processes, the legislature takes its appropriate cues to ensure that useful and proactive legislation is passed to complement and not constrict this progressive move towards improvement and efficiency in our jurisprudence.
Until then, it is hoped that the implementation of the new CPRs will restore or create the equity equality, the absence of which has been an effective deterrent to standing up to insurance companies and make the equity inequality a thing of the past.
Claimants can be encouraged that they can leave the fate of settlements of claims in the hands of the court under the CPR rather than to esurient insurance companies backed by foreign cash cow affiliates resident oversees, with far less honorable overriding objectives
— Tanya N. Wright,