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Market round-up, March 2018

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Neil Rose, editor Legal Futures, March 07, 2018

So now we know. Even with the Civil Liability Bill yet to be published (at the time of writing – although I expect it soon), its provisions will be introduced in April 2019, at least for RTA cases.

It appears that the Ministry of Justice has realised how tricky it will be in relation to EL/PL claims, but such is the desire to get on top of the whiplash ‘problem’, that officials are ignoring how many of the same issues will crop up in RTA.

They prefer not to address head-on how a regular member of the public can be expected to get on top of issues of liability, causation and quantum to bring their own case. Better to waffle on in general that these are not the types of cases where people should need a lawyer. It’s just like an insurance claim, they indicate, echoing something the then Lord Chief Justice Lord Phillips said some years ago.

Into this vacuum will surely step organisations to run these cases on behalf of consumers.

Will they be law firms? Some of the big practices are already preparing – they are not going to let such a significant part of their work slip away without a fight. How they do this is the really interesting question. Will they create unbundled or self-serve options? How exactly will they charge? Might this be an opportunity for public access barristers?

Will they be claims management companies? In evidence given to the justice select committee that only served to show how little he knew about PI, justice minister Lord Keen suggested this might be a good thing. I can’t imagine he was speaking for many people.

Although maybe this is the time for the Solicitors Regulation Authority’s proposal that non-law firms should be allowed to employ practising solicitors to advise the public. CMCs employing solicitors to represent consumers will be considerably more palatable.

Will they be McKenzie Friends? I think the McKenzie Friend scare is overblown. It’s an Aunt Sally that the legal profession loves to knock over, but the reality is that the number of fee-charging McKenzie Friends is probably in the dozens or the low three figures. They are not significant players in the market.

Of course, the Ministry of Justice has got a lot to do to meet the deadline and the first major hurdle is likely to be the justice select committee report on raising the small claims limit. Chairman Bob Neill MP – notwithstanding the recent news story about his consultancy with a large firm of defendant solicitors – has not come across as keen on the government’s proposals and could yet force significant concessions.

At the same time, it has emerged just how much work has been going on behind the scenes to bring the reforms into being, with the Ministry of Justice convening five working groups, made up of all sides of the personal injury world, covering the overall strategic direction, guidance and support for litigants, legal issues, liability, and IT.

I think the select committee report will be pivotal, but the profession can still have a big say in these reforms, particularly if it could change the habit of a lifetime and actually come together. The Association of British Insurers manages to present a united front, even though there must be differences between its members, and that is one of the reasons why it seems constantly ahead of the claimant side.

One fear I have is that the pressure of these reforms could push some people back into bad old ways – paying referral fees, cold-calling, opening up new areas (Cavity wall claims? Really?). Ministers and regulators will be watching beadily for this and it will only serve to bolster their case for change.

The deal isn’t done yet. But while the politics play out, it would be wise to work on the assumption that it is. The task now for every PI firm in the land – and this is far easier to write than do – is to work out how it will cope should the worst happen.