Home » Legal Help » Whiplash portal: views from the claimant and defendant | Feature

Whiplash portal: views from the claimant and defendant | Feature

Nichola Evans, Law Society council member for FOIL and member of Law Society’s civil justice committee, writes on the defendant’s view

With roads currently filled with cyclists in place of cars, it seems strange to be focusing on the new regime for low value road traffic accident claims. Its development has been a marathon rather than a sprint, and we are now close to a new system.

In its response to the Ministry of Justice consultation on reforming the whiplash claims process in January 2017, the Forum of Insurance Lawyers (FOIL) endorsed the use of a portal process for litigants in person. Many of the necessary features we outlined then are included within the new system: identification checks at the outset, a user-friendly information-gathering process, predictable damages through the tariff and medical evidence obtained through MedCo.

It is crucial that the new regime maintains access to justice. The government has made some pragmatic decisions to keep the system simple, with claims by vulnerable road users outside the Civil Liability Act, and no new small claims limit for minors.

The Motor Insurers’ Bureau reports high satisfaction levels from litigants in person who have tested the portal. The first contact centre representatives have been recruited to provide telephone support, and a paper process (for non-digital users) and a translation service will be available.

There are still challenges in making the system work. Claimants will need to be assisted through the system in valuing injuries outside the tariff. They will need guidance on obtaining rehabilitation. Credit repair and hire claims will be outside the process and will need to be handed separately.

Back in 2017, FOIL stressed the need for claims to remain within any new portal, rather than dropping out into the court service, and that remains an important issue if the claims process is to be simple and the courts are not to be overwhelmed. Measures are being introduced to provide consumer protection, including work by the MoJ and the ABI on the Claimant Code of Conduct. When litigation is needed, the portal and court process need to be joined-up: new processes are in the pipeline.

The introduction of the new regime has already been delayed, to allow time for both claimant representatives and defendants to prepare. It remains to be seen if the current implementation date of 1 August remains viable, with the rules and statutory instruments still to be completed and parliament not sitting at present.

What is clear is that the years of work that have led us to this point will shortly deliver a twenty-first century solution for handling low value RTA claims. Not before time.

David Bott, member of the Association of Personal Injury Lawyers and senior partner at Bott & Co, writes on the claimant’s view

Due to the Covid-19 pandemic, it is increasingly unlikely that the Civil Liability Act (CLA) will go live on the 1 August 2020.

When first announced, 1 August gave all those involved enough time to have the rules and a further three months to prepare.

As of today, there are no rules and the three months to prepare, was based on a non-pandemic, non-self-isolating, non-social distancing, non-working from home three months.

So clearly 1 August is unlikely to be the go live date.

But whenever it does come in, what are the drivers for the reforms?

The Ministry of Justice (MoJ) says for two main reasons: to reduce un-meritorious claims and to reduce fraud. And not to forget the overarching principle – that the claimant is at the heart of the journey.

This all sounds very laudable, so why are so many claimant lawyers concerned? In short, because these main aims are unlikely to be achieved.

The current system has claimant lawyers deciding if a claim has merit. The new system is being specifically built on the basis that there will be more litigants in person. So, less claimant lawyer involvement, more claims management company input and more litigants in person deciding the merit of their own claim. All of which combines, in my view to more, not fewer, un-meritorious claims.

The new system is not a silver bullet point and fraud will likely continue or merely move to another venue. And in my view, there is every chance fraud will increase.

Claimant at the heart of the journey then? The new Official Injury Claim (OIC) portal is impressive and the Motor Insurers’ Bureau have always said that they are building it based on what they think the rules will be, and if they are wrong, reworking will take place.

But is the OIC equal to or better than having a lawyer?

Litigants in person were originally compensated on the loss of a lawyer, by having access to non-binding alternative dispute resolution on liability and quantum. Both of which have been abandoned in the latest update from the MoJ.

The latest version of the process appears to give the litigants in person the ability to leave the OIC and issue in the small claims track for a liability-only hearing. Once this is resolved, they go back to the OIC to agree quantum. If this is not resolved, they will go back to the small claims court for quantum-only hearing.

So potentially two visits to the OIC and two court visits for resolution.

If I were a litigant in person, this would not make me feel I was at the heart of the journey. I would feel that I had to do more and wait longer to get less than I currently do.

As for the two main aims of the reforms, time will tell if they have been achieved.


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