September 2019 blog for Claims Magazine
Those who support claimants have been given no reason to believe that the new online portal for whiplash claims will be fit for purpose—nor delivered on time, as Qamar Anwar of First4Lawyers explains.
It is now, in theory, six months until the Civil Liability Act whiplash claims reforms come into force, but doubts about whether the Ministry of Justice (MoJ) will meet this self-imposed deadline are growing.
They have been around from the start, of course, but people on both sides of the divide have sensed a slight softening in the language coming out of the government in recent weeks. Justice minister Lord Keen, we are told, wants “to get this right and not rush it”. The Motor Insurers’ Bureau (MIB), which is building the whiplash claims portal, says “it’s April 2020 until it isn’t”.
The MIB and MedCo seem confident enough about the technical side of the whiplash reform programme—the issues are at the MoJ and the policy decisions that have still to be made, such as exactly how the alternative dispute resolution mechanism built into the process (for unrepresented litigants only) will work.
A major problem for lawyers and insurers is that the new rules and pre-action protocol will not be published until early 2020, leaving just three months to reconfigure systems and processes. Is that going to be enough time? It is not clear what impact a November general election would have, in so far as it affects the timetable, although presumably a Labour government would lead to the whiplash claims portal being scrapped altogether given the party’s steadfast opposition to the Civil Liability Act when it was going through Parliament.
Also, the MIB and MedCo have been working on the basis of various, presumably informed, assumptions of what the rules will say, but should the final versions coming out of the parliamentary Civil Procedure Rule Committee be different to what is expected, then April 2020 is almost certainly off the table as the portal will require revision.
The biggest problem of all, however, is what it will not cover, in particular rehabilitation and credit hire. People will be able to recover the costs if they pay for these services themselves, by uploading receipts onto the whiplash claims portal, but of course the vast majority will not do this. There will be pointers towards rehab, we’re told, but essentially the onus will be on insurers to proactively offer it—how confident can we be that this will happen? There does not seem to be a clear answer from the MoJ, beyond rewriting the Association of British Insurers’ (ABI) third-party claimant handbook.
The MoJ is more relaxed about credit hire, arguing that it is mainly dealt with insurer to insurer. But according to the Credit Hire Organisation (CHO), about 25% of cases do not fall into either the ABI’s general terms of agreement or bilateral arrangements. Instead, each case is negotiated by the credit hire company and insurer. Whichever route is used, no settlement generally leads to litigation.
The CHO has also pointed out that the MoJ is wrong to describe credit hire as both an insured loss and a subrogated claim. Rather, claims are pursued in the name of the individual. Esoteric though credit hire is, a lot of money is at stake and the government will only harm the interests of injured people by paying so little regard to this issue.
Other gaping holes are the lack of any connection with the existing MoJ portal, so there is no easy way for claims to move back and forth, and the failure to consider low-value claims by children. Though they are now exempt from the £5,000 small claims limit, the new compensation tariff will apply to children, and an injury lasting less than nine months will only attract compensation below the current £1,000 small claims limit. Lawyers are not going to be able to take on cases like that, so how do claimants get justice?
Nonetheless, the MoJ says access to justice will be at the heart of the new regime. But actions speak louder than words, and it is hard to see its set-up as anything other than an attempt to deny justice simply by making claiming really difficult for the public, Indeed, will there be a public information campaign to let people know about it? There has been no talk of one.
This impression was strengthened by the initial suggestion that the call centre that will support litigants in person through the process would only have 11 members of staff in total—for potentially hundreds or thousands of calls a day—although in fairness, the MIB has since said it will increase that number.
Those who support claimants have been given no reason to believe that the new system will be fit for purpose. That will not, of course, concern the MoJ, but let us hope at least that Lord Keen is good to his word and will not launch a system that cannot effectively perform the limited tasks it is meant to.
