Representatives from the MoJ have been meeting various industry groups. one of the most interesting was with APIL.
The following is a summary of the discussion:
Q1: Can you be clear about whether the increased small claims court limit would apply to RTA, whiplash, or all claims? The Autumn Statement was very vague.
A: We haven’t yet made that decision. APIL should get its thoughts on this to the MoJ by the end of January.
Q2: How does the MoJ define ‘minor’ whiplash injuries? Is that based on prognosis or value?
A: We had classic whiplash in mind. We haven’t nailed down what we want to put in the consultation – ministers will decide what we will consult on. If there is anything else we should be consulting on, let us know.
Q3: Are you looking for ideas about other ways to reduce insurance premiums and fraudulent whiplash claims?
A: We are concerned about abuse in whiplash claims. We need to beware of ‘silver bullets’ – there are those who argue that there should be more rehabilitation for these injuries but rehab is ripe for abuse.
Q4: What measures are you taking to manage the potential involvement of claims management companies in running these claims, if you increase the small claims court limit?
A: A lot of work is being done on this. A review of the work of the CMC regulator is ongoing and a report is due possibly in March or April. We are looking at other areas including the use of professional McKenzie Friends.
Q5: Do you envisage these small claims being dealt with by legal representatives for the claimant or by litigants in person?
A: Both. We believe these cases are easy enough to be done without legal representation. There will be the ability to use lawyers but there will be costs consequences to that.
Q6: What about claims where liability is denied or if there is contributory negligence?
A: That’s the sort of detail we have yet to consider. The court will decide on the appropriate track.
Q7: Have you considered the costs consequences of dealing with many more litigants-in-person?
A: We will consider this. However, a lot of lower value claims will be coming out of the system anyway as we are removing the right to claim compensation for minor whiplash claims, and as a consequence many of the claims will not run at all.
Q8: Will court procedures remain the same as they are now in the small claims court? Do you expect these claims to operate within the current paper-based system?
A: We will re-visit the pre-action protocols. We are seeking views on that.
Q9: Do you intend to allow litigants-in-person to use the portal for small claims?
Q10: Removing damages for minor whiplash claims will empty the portal of at least half of claims if not more – has the impact on the portal been considered?
A: Volumes are likely to reduce. We can’t say by how much.
Q11: The Autumn Statement referred to figures about fraud. Where did they come from? Did you validate these figures and the premium savings you are relying upon?
A: Industry sources, Government data – we used a range of different sources. The figures used so far are indicative figures and may be revised.
Q12: In an earlier Government response, it was said that safeguards for claimants would be put in place before any increase in the small claims court limit was implemented. What are those safeguards?
A: We are looking at the commitments we made in the last consultation. We will make an announcement in due course.
Q13: How many whiplash claims do you think is the ‘right’ number? You keep saying there are too many, yet claims are falling year on year.
A: Look, the Prime Minister has a lot on and when he is thinking about whiplash he wants the numbers reduced. Why do we have this massive problem in this country compared to other countries? There is a problem here. Ministers are determined to address that. The numbers and costs are still too high. [At this point our president, Jonathan Wheeler pointed out that we have answered this question before, in our Whiplash Report in 2012, which pointed out that the UK has 79 per cent more vehicles per kilometre than any other EU country and the most congested roads. Of course we have more collisions and claims. The officials were aware of these figures from the World Bank, but simply said that the numbers of claims and costs were too high].
Q14: What will be the impact on MedCo? All the experts are being trained to deal with soft tissue injuries. All that investment will be wasted.
A: Medical evidence will still be needed. [We explained that, in fact, a full medical report may not be required just to make a claim for special damages – a GP report may suffice to demonstrate there was an accident and subsequent loss of earnings.]
Q15: When can we expect the response to the MedCo consultation? Before, during, or after this consultation is launched?
A: We are aiming to get the MedCo consultation response out in the New Year, before the small claims consultation goes live.
Q16: Has the MoJ measured the success of anti-fraud measures to date (ie: ban on payment for referrals, MedCo, AskCue etc) and the success of other reforms?
A: Not yet. We’re keeping an eye on the number of claims and premiums.
Q17: What will be the trigger date for any reforms? We are concerned it may be the letter of claim because this will be too far down the line when the client has already had advice on funding and signed ATE insurance etc. You need to tread very carefully.
A: We would welcome further views.
Q18: Are you going to revisit damages-based agreements?
Q19: Will this affect the consultation on fixed costs for clinical negligence claims?
A: Yes. The dates for the consultations are very much in the air, but we aim to be aligned in terms of timing.
Q20: The removal of the right to general damages for a class of injured people is the removal of a right enshrined in law. How do you reconcile that with the proposal in the Autumn Statement for an automatic right to compensation for anyone whose train is delayed by more than 30 minutes? Do we now think that an inconvenience is worthy of compensation but an injury, caused by negligence, with several months or more of discomfort is not?
A: That is a political point and we couldn’t comment.
Q21: What length of consultation are you planning?
A: We are thinking potentially of a shorter consultation period as we are aware that these are not new questions and that most organisations already know what they wish to say and will have data at the ready (we explained that actually the removal of the right to compensation is a new point and that claimant data is spread across a huge number of law firms and that it takes time to gather and collate it. We urged for a full 12 week consultation).