Market round up: June 2022
The first anniversary of the Official Injury Claim (OIC) portal has placed some uncomfortable scrutiny on what it has achieved so far. The main answer appears to be a reduction in the number of claims and an even more rapid reduction in the number of law firms willing to handle them.
But what struck me most when he spoke at my PI Futures conference in late May was how little David Parkin, deputy director of civil justice at the Ministry of Justice (MoJ), seemed to care about how few claimants were bringing their claims unrepresented (fewer than 10%). To his credit, Mr Parkin has always been willing to front up and take the flak at PI Futures over recent years but I felt he was moving the goalposts a bit as he deemed the OIC a “cautious success” to date.
Long gone is talk about fraud (the original stated motivation for reform) – it’s now about reducing the number of claims to an acceptable level, whatever that may be. And why are there fewer claims? Is it just because there’s less money in it or are there other factors putting people off? We need to know this. There is a lot to say about the OIC, but I don’t want to repeat what I’ve already written on Legal Futures, which you can read here.
It's not like there aren’t other things to talk about. Responses to the consultation on fixed costs in clinical negligence cases worth up to £25,000 have been submitted, with a big thumbs down from the claimant side. A group of nine charities and patient organisations wrote to health secretary Sajid Javid to say they saw the proposals as a threat to both access to justice and patient safety.
The groups were Action against Medical Accidents, the Patients Association, Mencap, Mind, Action on Pre-Eclampsia, the Birth Trauma Association, Erb’s Palsey Group, Group B Strep Support, and the Harmed Patients Alliance. They criticised the consultation’s failure even to ask questions about the effect on access to justice and patient safety. Let’s face it – none of this is likely to make a difference, but we live in hope.
Also on the horizon is the extension of fixed recoverable costs across the fast-track and in most money cases worth up to £100,000, although the MoJ has put back the start-date from this October to April 2023. As a reminder, excluded from the scheme will be mesothelioma/asbestos, complex personal injury and professional negligence, actions against the police, child sexual abuse, and intellectual property claims. The MoJ is also taking forward the Civil Justice Council’s plan for fixed costs in noise-induced hearing loss cases.
As law firms look to pivot from whiplash claims to higher-value PI, these proposals are yet another hurdle to overcome. The push for greater efficiency in processing claims is only continuing.
As if this was not enough, the Court of Appeal will soon make its second attempt to hear CAM Legal v Belsner. The four issues before the court include whether RTA protocol work is contentious or non-contentious business, and the question of informed consent.
And then there is the Civil Justice Council’s holistic review of costs, commissioned by the Master of the Rolls, Sir Geoffrey Vos in the wake of his decision on the guideline hourly rates. This has been quietly progressing, with a focus on the rates, as well as pre-action costs, fixed costs and the future of costs budgeting. An interim report on the broader principles, rather than detailed recommendations, should be published soon for consultation.
At least further reform to whiplash claims seems off the agenda for now – more than five years since the consultation that led to the Civil Liability Act 2018 closed, in March the MoJ unexpectedly issued its response to the issues raised in part 2 of the consultation that it had not addressed, including areas like credit hire and rehabilitation. This said no further action would be taken, although in some areas it hinted that they were not off the table.
Add M&A activity among law firms and it’s the same old story: there’s never a dull moment in personal injury.
Neil Rose is the Editor of Legal Futures
