'Reforming the Soft Tissue Injury ('Whiplash') Claims Process': Access To Justice Thrown Out of the Window - Andrew Cullen, Barrister
23/12/16. The Government’s Consultation Paper, ‘Reforming the Soft Tissue Injury (‘whiplash’) Claims Process’, has sent seismic waves across the PI world, waves which will reverberate for years to come. In the forward to the Government’s Consultation Paper, Lord Keen of Elie QC, opines that “the government is bringing forward a package of measures to crack down on minor, exaggerated and fraudulent soft tissue injury (‘whiplash’) claims stemming from road traffic accidents (RTAs)”.
Consultation Paper Summary
The package includes four measures to: -
tackle the high numbers of minor RTA related soft tissue injury claims by either:
removing compensation for PSLA; or
reducing compensation for PSLA by setting a fixed amount payable (£400 or £425 if there is a psychological element) for these types of claim.
reduce compensation for PSLA for other RTA related soft tissue injury claims where recovery takes longer than for those covered by measure (a) above through the introduction of a set tariff of compensation;
raise the small claims limit for all personal injury claims to £5,000, (by reference to the value of the PSLA element of the claim); and
ban pre-medical offers to settle RTA related soft tissue injury claims, so in future claims could not be settled without medical evidence provided by MedCo2 accredited practitioners.
It is axiomatic that the Government’s proposals will restrict Claimants’ access to the law; for example, the five-fold increase in the small claims limit will inevitably result in Claimants having to pursue cases without any legal advice, and those Claimants will be against Defendant insurance companies with financial muscle, ensuring a David and Goliath contest.
The Government want to replace lawyers in personal injury small claims with paid McKenzie Friends and with claims management companies to assist Claimants. This is made perfectly plain at paragraph 103 of the Consultation Paper:
“The government is considering the issue of the potential for claims management companies (CMC) and paid McKenzie Friends to re-enter the PI market in response to these reforms in general, and the increase in the small claims limit in particular. These types of organisation can offer services to claimants whilst operating with lower overheads than many PI lawyers”.
The alleged objective of the Government’s bold proposals is to reduce fraudulent claims; however, it is difficult to conceive how the Government’s proposals will reduce fraudulent claims. In fact, it is likely to increase such claims as Claimant lawyers will no longer act as a barrier to vexatious claims.
Lord Bingham once said “the law must be accessible and so far as possible intelligible, clear and predictable”. It is clear that the Government’s Consultation Paper side-steps the rule of law and follows a consistent thread of government policy which has an inescapable consequence of making the law less accessible.