Personal injury (PI) claims that fall into an enlarged small claims track under government reforms should be dealt with online rather than in court, an expert Civil Justice Council (CJC) group has suggested to the Ministry of Justice.
It said that moving cases to the county court would be the “worst answer” to the many problems the idea could cause.
The CJC yesterday published notes of a workshop it held in July about extending the small claims limit for PI – after the initial announcement in last year’s Autumn Statement but before the MoJ’s recent decision to press ahead with it.
The document does not name any participants, but the CJC routinely brings together all sides of the PI world for such meetings.
The only person mentioned, by initials, was from the Ministry of Justice, a ‘RW’. This is likely to be Robert Wright, the head of civil litigation funding and costs. The notes said he emphasised “the importance and value of meetings of expert stakeholders of this kind”. He described the Autumn Statement as being about proportionality.
At present, 86% of the cases that go through the RTA portal were resolved at stage 2, without the involvement of the court system, the workshop heard. Of those that go to court at stage 3, the hearings are short because liability has already been admitted, meaning a district judge can dispose of 20 in a day. With liability still potentially in dispute, a single small claims hearing would take much longer.
Further, the government proposal caught areas of law where liability was admitted less frequently, the notes recorded. A litigant in person (LiP) would find it “even harder to establish the liability of an employer for a workplace accident. They often didn’t even know who to sue. Clinical negligence was another complicated world, where liability was not straightforward”.
They added: “One problem with the flexibility and ad hoc processes in the small claims track (SCT) was that it was hard to give firm advice to LiPs on how the hearing was to be conducted and the way in which evidence was gathered, among other things – and the steps they had to go through as a result.”
What was needed was a web platform that allowed people to conduct an online search and “to have their hand held on occasion through the process, with others linking in, providing an end‐to‐end service…
“There would also need to be rule changes and a separate portal protocol written for LiPs as the present portal rules were complex, and designed for lawyers on both sides.”
The notes said that no defendant or insurer wanted these cases in the SCT either – “it cost them more money. After an admission of liability, the portal could guide people through the process – e.g. on obtaining medical evidence. SCT was only suitable for exceptions or liability disputes”.
Others issues included how LiPs would be able to assess damages without some kind of tariff and collect medical evidence and pay for any reports.
There was little support for claims management companies or McKenzie Friends helping LiPs. Instead, “unbundled legal services would allow claimant to understand their claim properly. Even an hour of advice would allow claimants to understand whether there was merit in their case, have the steps described, and then be referred to mediation”.
But the workshop acknowledged that solicitors were cautious about unbundling – “the risks were still large and they should only be held liable for the parts of the case on which they advised, not the whole action”.
The notes said: “The group’s conclusion seemed broadly that these cases should not be moved to the county court. That would be the worst answer to the questions and concerns raised in the discussion.”
There should instead be an onus on the LIP in straightforward cases to access a system online, go to MedCo for a report and send that to defence insurer to admit or deny liability. If the defendant denied liability, the possibility of costs shifting “should be introduced”.
If liability was admitted, the defendant should make an offer to settle, and possibly pay for advice on the merits of that offer. If liability was denied, and the claimant won, the claimant would pay a percentage of damages to the solicitor, as they would if an offer was refused on the solicitor’s advice and the eventual award was 15‐20% higher. “There would thus be an incentive on the defendant to make a reasonable offer.”
The system, the workshop said, should help a claimant value their claim, establish liability and point the way – “but with bespoke advice where there was a dispute (or for more complicated cases)”.
That was where alternative dispute resolution could come in; not just mediation but also a form of adjudication giving a non‐binding indication to both sides on the likely direction of travel with regard to liability and valuation. This would encourage settlement before a trial.
The idea of adapting the proposed online court to include PI – which was not Lord Justice Briggs’ recommendation because of the portal – was also raised.