Tuesday, 13 December 2016

Responding to the MOJ Small Claims Proposal

Responding to -  Reforming the Soft Tissue Injury (Whiplash) Claims Process. 

This is perhaps the most misleading title to a consultation in the history of misleading consultations! It is obvious to anyone who has read it that it is really the biggest attack on access to justice for accident victims that I have seen in my 30+ years of practice. For anyone who has been on another planet in recent weeks, it includes the proposal to move all personal injury claims into the small claims court if they have a value of up to £5k. This in turn means that successful claimants pay their own legal costs even if they win.

These are some of the points that we have made in relation this wide sweeping proposal. I am limiting comments here to the general issue of small claims. These may help others in drafting their response–

1.     The general small claims limit is £10k. Personal injury claims were always treated differently. But this means that if a victim has a personal injury claim valued at say £4750.00 and vehicle damage at £5k this will be a ‘small claim’. This is equivalent to about 2/3 of the annual take home pay of a person who is ‘just about managing’ on the living wage. This is by any reckoning a significant sum.

2.     Paragraph 100 argues that legal assistance is not essential because there is help and support available for litigants in person. This may be so but is in fact little comfort to litigants who are trying to work their way through the complex maze of the CPR in a very alien world. It does not help them obtain appropriate medical evidence. Nor does it assist them in their dealings with highly sophisticated claims teams or the top end law firms who will inevitably be instructed by insurers.

3.      The consultation says that there has been no increase in the limit for 25 years. A quick visit to the Bank of England’s Inflation Calculator shows that in today’s figures the £1k limit from 1991 is now worth £1936.50. So an increase to £2k might be justifiable. A 500% increase is neither rational not justified,

4.     Paragraph 17 of the consultation argues that moving cases to the small claims track ‘would mean that claimants would now have a direct financial interest in decisions about pursuing their claims in that they would be responsible for their own costs’. This was exactly the same argument that was used in 2013 to justify removal of the right to recover success fees from the losing party. Claimants have a stake in the claim already. They stand to lose up to 25% of their damages for injury and past losses. They will also have to pay for any insurance out of their damages. Claimants who can recover no legal costs against someone who negligently injures them simply cannot afford to pay for legal costs that would at least wipe out the value of the claim. Either they will not bother or they will act in person, with all of the complications which that can bring.

Two other general points are worth a mention. Kerry Underwood has pointed out the serious error in the consultation in relation to the suggestion that a claimant should need permission to discontinue a claim within 28 days of trial or risk having to pay other sides costs – something which is already provided for in the rules –

It is also worth persevering to page 78 and paragraph 6 which invites views on the assumption that 85% of savings will be passed on to consumers! One wonders why this final piece of humour is buried right at the very end of the document.

I would encourage everyone to respond. It is highly unlikely to make a great difference to politicians who do not want to listen. But that does not mean that we should not make ourselves heard as loudly as possible.

If anyone would like a copy of our answers to the consultation question please let me know. The more responses the better!

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