LONDON (UNITED KINGDOM)
Insurance Post [United Kingdom]
April 1, 2021
By Dr. Julie Mcfarlane
Tensions between abuse survivors and insurers have always been high. Dr Julie Macfarlane, a distinguished University Professor and Professor of Law (Emerita) at the University of Windsor and the director of the National Self-Represented Litigants Project, explains why this might not be changing any time soon.
I believe insurance companies, and the lawyers who work for them, depend on failed claims for their business model. In other words, their legal defence strategy is inherently adversarial and positional, and aims to minimise or deny loss.
In the last 15 years, some insurers have recognised another important strategy – settling cases is less costly than fighting them all the way to court. Alas, this message is continuously undermined by the legal profession’s addiction to winning.
Some would say it is naïve to ever imagine an insurer embracing a genuine commitment to settlement other than in cases they know they will lose at trial. Yet, in my experience, many defence strategies go even further, in calculated efforts to protract the resolution of a claim, a default to attacking the credibility of the claimant, and a denial of the extent of loss.
However resistant the legal insurance culture is to a settlement approach, one might reasonably assume that the handling of physical and sexual abuse claims by an insurer demands a different approach to, say, a car accident or a flooded basement. One might also be forgiven for imagining that when high-profile religious entities or local authorities are the insured client they might adopt a different approach than Harvey Weinstein’s Miramax Corporation, or Philip Green’s Arcadia Group.
In 2016 I went through the settlement process for my own abuse claim, in my case against the Anglican church and its insurer Ecclesiastical, owned by church charity Allchurches Trust.
Part of the settlement of my lawsuit resulted in a revised claims process at Ecclesiastical. It was happy to trumpet the protocol developed as the most advanced in the insurance world for handing physical and sexual abuse claims and boasted about being the first to publish ‘Guiding Principles’ – drafted for it by myself, my solicitor David Greenwood, and my law school class.
In theory, these principles included commitments to faster settlement, respectful treatment of survivors, eschewing bogus consent and limitation arguments, and counselling for all claimants.
These values have been lauded as a template for other insurers dealing with CSA claims, although from our initial draft there were several exceptions added to the finished product. However, in practice, without an ongoing external monitoring process, there is no way of knowing how far such guidelines are followed. Reports from survivors and their lawyers suggest the old playbook of drag-it-out, attack the claimant, and deny the damage, seems relatively unchanged despite ‘knowing better’ now.
One particularly egregious tactic used throughout the insurance industry is the use of ‘neutral impartial’ experts I believe are mandated to attack claimants’ credibility and deny the impact of the loss on them.
The Independent Inquiry into Child Sexual Abuse (in England and Wales) recognised the difficulties posed to survivors forced to engage with multiple experts, with both insurer and claimant representatives acknowledging that due to the “adversarial nature of civil justice” their views will often be in opposition, and in IICSA’s 2019 interim report on accountability and reparations one suggestion was that one joint expert could be agreed upon by both parties, subject to an agreed protocol.
Commitment to using a single expert wherever possible is also part of Ecclesiastical’s Guiding Principles. In theory, under the rules of civil procedure, experts have a duty to advise the court independently of the party who ‘instructs’ (hires) them, and this must take precedence over any duty they owe to their paying client. In other words, their value as ‘expert’ is underpinned by their objectivity and neutrality.
In practice, it is my view that these experts can give insurers what they want – a partisan formulaic report which routinely attacks the credibility of the victim and casts doubt on the harm caused to them by sexual abuse. I – and others – have complained to the General Medical Council about what we perceive as partisan expert conduct. Most of these complaints have been dismissed without investigation.
My complaint was investigated but dismissed. The letter setting out this decision referred to the fact that the GMC was unable to find out how the expert was instructed by the lawyers for Ecclesiastical because it was protected by “privilege”.
Complaints against experts are rarely going to succeed where there is scope for a range of subjective opinions. Even when they rely on discredited canards about consent, power, and trauma. The real nexus of the problem lies in the relationship among the insurer, their litigators, the expert, and their professional body. The industry standard of minimising payouts to claimants, keeping the retainer arrangement between expert and insurer hidden including from the scrutiny of the expert’s professional regulator, and reluctance to use a joint agreed and trusted expert adds up to this: in my view the ‘experts’ of this world will continue to have a nice little earner going and sexual abuse claimants will continue to be treated as skittles in a bowling alley.
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