Posted by Andrew Wild, head of legal practice at Legal Futures Associate First4InjuryClaims
Wild: ADR cannot come soon enough
May will mark three years since the launch of the whiplash reforms and the Official Injury Claim (OIC) portal and, for those of us trying to navigate the new world, the transition has been far from smooth.
Introduced as a way for road traffic accident victims to seek damages without needing legal help, it has been widely criticised for failing to meet this policy aim and, more recently, due to the growing backlog of unresolved claims and lengthening average settlement times.
In September last year, with almost 350,000 claims outstanding, a justice select committee report called upon the Ministry of Justice (MoJ) to investigate the problem.
While the OIC got off to a shaky start, it has since stabilised. However, what is clear is that it is still a work in progress. As we approach the third anniversary, below are what I believe will be the big issues for 2024 to ensure that the progress continues.
Management information
Martin Saunders, head of service for OIC, recently published a blog addressing the issue of dormant claims in the portal. His analysis showed there were potentially more than 44,000 claims pending withdrawal by either the claimant/representative or their compensator/third party administrator. There are also likely to be many other claims at different stages that require review.
If claims are not updated correctly by either claimant representatives, or compensators, for example, following abandonment, settlement outside of the OIC or having been submitted on the RTA portal due to value, then the OIC will still show them as being active.
This skews the data, as it appears that these claims are ongoing, and makes it hard to gauge an accurate picture of what’s going on.
To ensure the accuracy of the MI, law firms and compensators need to ensure their claims in the OIC are up to date and certainly before any conclusions are drawn, or any further policy decisions by the MoJ are made.
Mixed injury claims
Some of the cases that have seemingly stalled in the OIC may well be awaiting the outcome of the Supreme Court hearing on mixed injury claims, which is due to be heard later this month.
The issue of how to value such cases – where a claimant suffers both an injury covered by the whiplash tariff and one that is not – was decided by the Court of Appeal last year, but now hangs in the balance again after the Association of British Insurers was granted leave to appeal.
I hope to see this resolved in favour of injured claimants as the policy decision behind the OIC was due to the purportedly excess volume of whiplash claims rather than all soft tissue injuries.
Insurers’ claim that the number of mixed injury cases has risen dramatically since the portal’s launch has been branded as false by the Association of Consumer Support Organisations, which says its own research shows little change.
Medical reporting
The MoJ is currently analysing feedback from a consultation on changes to the medical reporting process.
One aspect of the consultation is that the MoJ suspects some claimants are waiting out their prognosis period before submitting reports in case recovery takes longer than predicted and has proposed that such reports are instead uploaded directly to the portal by medical reporting organisations.
Claimant representatives have opposed this, saying it removes their right to review them first and ensure the suitability and accuracy of the report, rather than relying on the medical expert and agency.
I agree. I believe the MoJ’s time would be better spent on ensuring the data it does have from the OIC is up-to-date and accurate before implementing any further changes.
Increasing the use of mediation
Alternative dispute resolution (ADR) was part of the original proposal for the OIC and last summer the Ministry of Justice confirmed that it would introduce compulsory mediation for small claims valued up to £10,000, starting with specified money claims, with personal injury added at a later date.
With the court system already buckling under a mounting backlog of cases, this cannot come soon enough.
The ‘enhancement of transfer’ process
As it stands, if a claimant acting as litigant in person decides to instruct a lawyer after starting a claim, or if they have representation but want to change law firms, there is no facility to transfer the case. Nor is there any means of transferring claims that are originally submitted in the OIC but exit due to value onto the RTA Portal. The initial claim has to be withdrawn and a new one submitted.
These roadblocks were raised by stakeholders, myself included, at a series of roundtable events held last year for people to discuss their experiences of the OIC.
The MoJ subsequently reached out asking for further feedback on the issue and we expect to hear the findings of this exercise soon, which I am hopeful will lead to a transfer process being introduced.
Launched in the wake of the whiplash reforms, First4InjuryClaims was fortunate in that we were able to develop systems and processes that dovetailed with the OIC portal. Others struggled to adapt theirs and many have since exited the RTA market.
It feels, at long last, however, that those of us who are left are being listened to and, if we want to see continued progress, we must keep that conversation going.
A version of this article first appeared on Insurance Claims
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