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Litigation: the ultimate reality check

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INSURER. Statement of Claim. X 2. Negligence. Misleading or deceptive conduct ... WHAT DID THE INSURER LOOK FOR ? Diary Notes. File Notes. Confirmation Letters ... – PowerPoint PPT presentation

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Title: Litigation: the ultimate reality check


1
Litigation the ultimate reality check Trevor
Williams, Grant Holley Tim Nethercote
2
THE PROCEEDINGS
PLAINTIFF
INSURER
  • TW

3
THE FOURTH PARTY
4
THE PROCEEDINGS
PLAINTIFF
INSURER
  • TW

5
REALITY
6
WHAT DID THE INSURER LOOK FOR ?
TWs COMPLIANCE SYSTEM
  • Diary Notes
  • File Notes
  • Confirmation Letters
  • Advice documents (CAR)/Fact Find
  • Standard Practices
  • Compliance History

7
What did REALITY mean for TW?
  • the preparation
  • the Court
  • the media
  • the commercial cost
  • the personal cost
  • the aftermath

.. and we had a good result!
8
SOME IMPRESSIONS
  • Trevor experienced adviser 29 years
  • had never had a complaint
  • seemed a typical client
  • increasingly litigious society
  • nightmare stress, anger, frustration
  • the depth of the investigation

9
IMPRESSIONS
  • proof -v- what actually happened
  • recalling events 3 years old
  • discovery
  • Trevor was also sued by the life company. Why?
  • who pulls the strings/makes the decisions?
  • the role of the press

10
IMPRESSIONS
  • effect on Trevors business
  • effect on PI renewals
  • support by clients
  • support by the life office
  • the risks apply to all advisers

11
BEST PRACTICE STRATEGIES
  • completion of the personal statement
  • understand and always refer the client to the
    duty of disclosure
  • be mindful of .. I told the adviser that I
    .
  • PI insurance have adequate cover
  • understand your complaints handling process

12
PAPER TRAIL
  • correspondence
  • advice documents SoA, RoA
  • file notes of telephone conversations,
    conferences, photos, etc
  • email beware!
  • have effective diarising systems to follow up
    clients
  • develop checklists and appropriate documentation

13
THE PROCESS OF GIVING ADVICE
  • identify the task scope of the advice what
    is your service offering?
  • conduct a fact find
  • (eg risk profile who is the client? Frequency
    of profile reviews)
  • analyse the clients needs and objectives
  • apply your specialist knowledge
  • make a recommendation (strategy/ product)
  • document the above process (SoA, RoA, file
    notes, correspondence, checklists)

14
MORE STRATEGIES
  • dont wing it! (potentially misleading or
    deceptive conduct)
  • know your products be product competent role
    of research
  • full and proper disclosure
  • ask the next question
  • recognise the alarm bells

15
MORE STRATEGIES
  • informed choice dont make decisions for the
    client
  • train your staff properly and ensure they
    understand the limits of authority
  • develop an understanding of basic contract law
  • when communicating with the client, put yourself
    in their shoes
  • are they sophisticated? Will they understand
    the advice? Be creative!

16
MORE STRATEGIES
  • beware replacement!
  • record advice, not just purchase orders
  • appropriate procedures
  • appropriate behaviour
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