June 17, 2019

Whiplash reforms: are we nearly there yet?

The passage of the Civil Liability Act last year started the countdown to the introduction of several changes which will dramatically alter the landscape of whiplash claims and the motor claims market for all involved.

The Government has consistently reiterated its intention for the reforms to be implemented in full by April 2020. With this date less than a year away, there have been a number of recent developments worthy of discussion.

Small claims track increase

The introduction of a tariff system to whiplash injuries (with a prognosis period of less than 2 years) is particularly significant due to the corresponding proposal to increase the small claims track limit as part of the overall whiplash reform package.

The small claims track limit for RTA-related claims will be increased to £5,000 and £2,000 for EL/PL cases. The increase will be carried out via secondary legislation, and it is expected that the legislation required will be advanced later this year.

The headline result of this increase is that those claims valued below the new limits will no longer result in costs recovery from defendants (save for limited small claims costs) with the expectation that greater numbers of claimants will be required to represent themselves.

In order to deal an increased number of unrepresented claimants, a new portal for whiplash claims is being created.

New claims portal

The Motor Insurers Bureau and other stakeholders are continuing to develop the new claims portal to handle SCT whiplash claims from April 2020 onwards. The current portal will continue in use for claims above £5,000.

The MIB recently provided a glimpse of the 'customer journey' for the new portal, which will be used to help develop the completed system.

The main stages where liability is admitted are: register, create claim, assign claim and submit liability, organise medical and instruct provider, agree medical report, make and review offer, and issue compensation payment.

The MIB has stated that stakeholders will be able to see the elements of the 'journey' that have already been built during the summer, ahead of large scale testing expected to take place in October of this year.

There is a current lack of clarity as to how unrepresented litigants will obtain medical reports through the MedCo process, although it has been agreed that for all where some liability is agreed, regardless of the claimant’s means, the cost of the medical report will be paid for by the at-fault insurer.

Where liability is denied, and the claimant is unrepresented, then a bespoke ADR process is being created, in the form of paper based system of neutral evaluation. Ministry of Justice spokesman Lord Keen confirmed that insurers have agreed to be bound by the evaluation where it is found the insurer has some liability. However, where the evaluation does not find any liability, the claimant is not bound in the same way, and retains the right to start proceedings. The medical report would then be paid for by the claimant, and recoverable as a disbursement. The details of those providing the 'independent view' have yet to be confirmed, along with any links between "court fee exemption and medical report fees".

The MoJ has also stated that the portal is intended to handle injury claims from children, although it is not yet decided what, if any, safeguards will be included for these claims.

Similarly, whilst the system is aimed at assisting the 'unrepresented claimant', it is not clear what systems will be put in place to ensure that claimants are truly unrepresented when given access to the ADR process.

MedCo

It is expected that the MedCo process will be used within the new portal process. However, involving MedCo is not without concerns, prompting the MoJ to consult on the issues: Future Provision of Medical Reports in Road Traffic Accident related personal injury claims. This consultation closed in May and the feedback is currently being analysed.

The consultation questions whether other types of medical experts should be added to those already available. The possible inclusion of osteopaths/chiropractors specifically raises concerns given the NHS describes them as Complementary and Alternative medicines (CAMS) and neither therapy is recommended by NICE for neck pain. Furthermore GPs will be able to comment on any other minor injuries in addition to soft tissue injuries.

The MedCo system presently provides legal representatives with a choice of medical agencies to instruct, which may prove unduly challenging for litigants in person given their unfamiliarity with the process. It may therefore be appropriate for unrepresented litigants to be provided with the details of a single organisation/expert to instruct in order to ensure the system is as simple as possible to navigate.  

Medico-legal Reporting Organisations

In responding to the consultation, MedCo itself stated that the Government should consider formally regulating Medico-legal Reporting Organisations (MROs) following "evidence of misrepresentation, dishonesty and, in some cases, suspicions of fraud" by MROs when supplying solicitors with expert reports. Effective safeguards and monitoring will be vital to ensure the efficacy of the new system.

Impact on the claims market?

Recent figures released by the Compensation Recovery Unit suggest that newly registered motor cases have remained static in the last year.

The figures released for 2018/19 show a slight increase in the number of motor claims reported to CRU (660,608 compared to 650,019 in 2017/18) but this is still a significant decrease from the 780,324 motor claims reported in 2016/17.

Any expected surge of motor claims does not appear to have yet materialised, but that is not to say that concerted efforts will not be made by claimant representatives to bring claims in advance of the reforms, as was seen prior to the introduction of the LASPO reforms.