Understanding the who’s who of PII claims

During the process of dealing with a notified circumstance or claim, you will encounter various people, from different organisations, all with very different but essential roles.

We appreciate that it can seem overwhelming when there are a number of people involved in the process. It is therefore important not only to understand the process of dealing with a notification, but to also understand the different roles each party plays.

In this article, we focus on the key groups of people you are likely to come across.

Insurance Broker

Initial Notification

Usually, the initial step would be for you to notify your Insurance Broker's claims team of the claim that has been made against you or of the circumstance you are aware of which may or is likely to give rise to a claim against you (depending on the terms of your policy). Each policy has slightly different requirements, so it is important to familiarise yourself with the written requirements of your policy. This is something your Broker can assist with if you are unsure.

Your contact within the claims team will be invaluable. They understand that this can be a difficult and, at times, stressful experience, and will be on hand to assist to you throughout the entire process.

Once you have notified your Broker of the claim or circumstance, they will triage the information provided and make the notification directly to your Insurers or their appointed representatives on your behalf. If there is any additional information your Broker needs from you, they will contact you to collect this before making the notification to Insurers. This should help in pre-empting some of the questions that Insurers may raise. Your Broker’s claims team have a wealth of experience in dealing with notifications and are fully aware of the information Insurers are looking for on notification.

They will also be able to help by working with your Insurers to manage, progress matters and reach a positive solution.

Ongoing support

Not only will your Broker be able to assist you with any queries and guidance throughout the process, the most important part of their role is ensuring your position is protected. Your Broker will oversee the notification and can step in to help you if any tricky situations arise, such as disputes over strategy or if there are any coverage issues. Remember, your Broker is acting as your agent so please do utilise them.  

Your Broker can also facilitate claims review meetings with your Insurer (if appropriate) to discuss the notifications you have made, any outstanding issues and the steps which need to be taken next. They can also offer invaluable training sessions and guidance if needed.

Insurer and Third Party Administrator ("TPA")

Once a notification has been made, your Insurer may either handle the notification within their in-house claims team, or the Insurer may have outsourced the handling of claims to a Third Party Administrator ("TPA").

A TPA may be an independent company, or it may be a team within a firm of solicitors. This can at times cause confusion, as a firm of solicitors may actually be acting as a TPA and not as appointed solicitors, which we will discuss later.

However, essentially the TPA will step into the shoes of your Insurer and will carry out the same role. The only difference is that the TPA acting on behalf of your Insurer may need to seek instructions from your Insurer from time to time, usually in relation to coverage decisions or settlement offers on higher-value matters.

An Insurer/TPA will investigate the notification made to them and form an initial view on how to proceed, whilst considering your comments and suggested way forward. They will be responsible for managing the claim from start to finish and will help you with preparing draft responses, provide you with their advice on next steps and work with you to resolve the issues and progress the matter to a satisfactory resolution.

The Insurer/TPA will usually only deal with notifications up to certain trigger points and if a claim is made against you which is high value, complex or if Court proceedings have been issued, Insurers may wish to appoint solicitors to assist.

Panel Lawyers

You may see a law firm appointed by Insurers being referred to as ‘Panel Lawyers’. This is because Insurers will likely have a panel of trusted ‘go to’ law firms that they regularly use with pre-agreed rates and terms of business.

It is important to note that when a law firm is appointed to defend a claim or potential claim, they will be appointed on a joint retainer to represent not only the Insurer’s interests, but also your interests.

Whilst Insurers will have their panel of law firms they will look to instruct, if you have worked with a law firm before on a matter who achieved a good result, you can flag this to your Broker who can put forward your preference to your Insurer for their consideration. However, final approval will rest with your Insurer, and you must ensure you seek their approval if you wish for a law firm to be instructed on a particular matter.

One of the key advantages of having a law firm instructed is that they will have specialist knowledge together with the resources available to deal with the claim. Panel Lawyers will understand that the process can be stressful, emotional and at times can carry reputational issues. They will therefore work very closely with you following their initial instruction to alleviate your concerns and guide you and your Insurer through the process until that claim is resolved. They will gather all relevant information to report to both you and your Insurer with their advice on liability, the value of the claim and the strategy to be adopted. They will continue to report to you at regular intervals to ensure that both you and your Insurer can provide instructions on the next steps to be taken.

Panel Lawyers will be able to accurately determine the level of risk associated with the claim, and recommend the most appropriate way of dealing with that specific claim, to include coming on the Court record in litigated matters and ensuring all procedural deadlines are met, formulating an appropriate and robust response to defend the claim, or advising on a sensible and commercial settlement offer to reach an early resolution.

In some cases, solicitors may instruct a barrister to provide specialist advice if necessary.

Barristers/’Counsel’

Barristers are generally used for specialist advice, drafting Court documents and for their ability and skills to represent parties in Court. They have rights of audience which means they can appear in all Courts in England and Wales.

Barristers will have specialist expertise in specific areas of law which allows them to be objective and Panel Lawyers will often consult a Barrister on a specific point when defending a claim; for example, the strength of a particular argument. The Barrister will provide their opinion on what they have been asked to advise upon, usually in the form of a written advice. The same Barrister may be consulted various times throughout the life the claim and will form part of your legal team. 

Other Professionals

Above are the main categories of individuals you will come across during the claim process. However, there will be other instances where other professionals can become involved which we will touch on briefly.

It may be appropriate to instruct an Independent Expert to provide an opinion in relation to a specialist technical issue in claims where the information required goes beyond the knowledge of a Panel Lawyer or Barrister. An example may be to instruct an Expert Valuer to comment on the potential diminution in value of a property which is the subject of the claim. 

When parties are looking to resolve a dispute, the use of Alternative Dispute Resolution (“ADR”) is encouraged which may involve the claim being dealt with by arbitration or mediation. Mediation is the most common which involves a confidential meeting with a third party facilitator known as the Mediator who will assist the parties to a dispute in trying to reach a resolution or narrow the issues between them. Anything said at a mediation is completely confidential and therefore can be a useful way of reaching a resolution to the claim.

Written by: