Market round-up: June 2021
It’s taken over five years, and it is more than two years later than planned, but the Civil Liability Act reforms are now with us and the Official Injury Claim portal is live.
They were launched with little fanfare – just a government press release dutifully regurgitated by the mainstream media with no effort to seek further comment beyond the odd insurer. The Ministry of Justice ‘helpfully’ quoted the RAC Foundation parroting the insurer line if they could not be bothered to do even that.
Only The Times – one of the few newspapers that still has a legal correspondent – gave a little space to the claimant perspective.
As I wrote on Legal Futures the day after, wouldn’t it have been nice to see the Law Society in particular and APIL try to counter this inevitable spin? But there was just silence. It felt like a dereliction of duty on the part of the Law Society.
Most of the questions everyone has been asking remain unanswered. Two days after the portal went live, the MIB announced that it was facilitating a cross-sector working group – including APIL, MASS and the ABI – to work on test cases about mixed claims that can be taken to the Court of Appeal for definitive guidance.
The group is creating a framework to cover timing, the parameters for identifying suitable test cases, and interim compensation arrangements to ensure individual claimants are not disadvantaged by their involvement in the test cases.
The MoJ flagged that it would support this approach at last year’s PI Futures conference, but it smacks of palming off the problem that it should have addressed – the same goes with dropping ADR from the portal. We have recently seen the likes of Slater & Gordon and Minster Law taking part in independent ADR pilots for low-value RTA claims which have shown promising results.
The fact is that, if the MoJ really wanted a new approach to these claims, ADR should have been at its heart. What is left is a clunky system that potentially sees claimants having to come out of the portal to resolve an issue, go to the small claims court, get the decision, re-enter the portal and repeat.
Anyone who has spent a bit of time reading the 64-page user guide will know how un-user friendly it is. One lawyer I spoke to joked that it will be easy to spot the whiplash fraudsters because they’ll be the only ones using it as litigants in person (LiPs).
The charity Support Through Court has raised several valid worries, including the difficulty of LiPs valuing their claims – the ranges provided by the MIB via the Judicial College Guidelines only take you so far – as well as the likelihood that LiPs will simply accept the first offer they receive. After all, how could they know what a reasonable offer is?
LiPs represent a danger to insurers too as they have the potential to become far more time-consuming and costly than represented claimants. But this will only have an effect if they claim in their thousands. In essence, the whole reform programme is predicated on deterring claimants so that their number is no longer, in the MoJ’s words, “unacceptably high”.
What the government considers an acceptable number of claims is not clear.
I wonder too what will happen if, several months after claiming, LiP develop a more serious brain injury that was missed? It’s a real danger for the whole system.
But we are where we are. The next few months will be fascinating to see how the market reshapes and behaviours change. And how long it will take insurers to start moving on to the next call for reform, such as credit hire and rehabilitation.
Part 2 of the original consultation – which closed on 7 January 2017 – may be in the long grass but it is not completely submerged.
Neil Rose is the Editor of Legal Futures
