Goodwill and co-operation between claimant and defendant representatives and compensators will be needed to overcome some of the problems the new whiplash regime throws up, a special Legal Futures webinar heard on Friday.
With talks already underway on a test case to obtain judicial guidance on claims that combine both whiplash and non-whiplash injuries, rehabilitation was identified as another key area where co-operation was needed.
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said talks were already underway with insurers about rehab and credit rehab, but he acknowledged that “a lot of goodwill” would be needed once the Official Injury Claim portal went live on 31 May.
He pointed out that, as insurers were not dealing with their own customers when it came to rehab, the activity was not regulated.
Brett Dixon, vice-president of the Association of Personal Injury Lawyers, suggested that the cross-industry approach taken in the Serious Injury Guide offered a way forward, but noted how little time there was to strike agreements of this nature before the portal went live – which in any case would not bind the litigants in person for whom it is mainly intended.
There was recognition that, whatever the failings of the regime, it had to be made to work – Paul Nicholls, chair of the Motor Accident Solicitors Society, said some lawyers would become “very rich” off the back of the likely satellite litigation.
But both he and Faye Fishlock, a partner and head of injury claims at leading defendant firm DAC Beachcroft, recalled that nobody thought the current MoJ portal would be a success either.
“Everyone wants it to work,” said Ms Fishlock. “Where possible shortfalls are perceived, the industry is already beginning to work together.”
Mr Nicholls praised what had been produced, saying the problems were caused by the policy set by the Ministry of Justice (MoJ).
Speakers predicted that it would take some time to overcome the teething problems, with the recently published rules raising the possibility of a claim having to exit the portal to go to the small claims court and then potentially re-enter the portal four times – all for a claim that may only be worth a few hundred pounds.
Mr Dixon, who sits on the Civil Procedure Rule Committee, said it had been dubbed the ‘hokey cokey’.
David Parkin, deputy director of civil justice at the MoJ, confirmed that the governance board that would manage the OIC post-launch would be informed by a cross-sector advisory group that is being set up.
He said the MoJ has “no objections to well-regulated, well-run” claims management companies taking on injured people’s claims, but there were questions raised in the webinar about whether they would be conducting reserved legal activities by doing so.
Mr Dixon said: “It depends on whether you consider a pre-action protocol to be a reserved legal activity – the jury’s out on that one.”
Asked what success would look like for the MoJ, Mr Parkin said it would be unrepresented claimants “easily obtaining access to justice and suitable damages where that is justified and we have a process that is smooth, simple and understandable for them to do that”.
The other part would be a reduction in costs and premiums, he said; insurers will have to report on whether and how they have passed on savings in 2024.
Among the technical issues covered in the webinar was that the portal will provide translators for 10 languages, as well as support for people who are deaf and/or blind, the costs of which will be paid for in the overall running costs, rather than charged to individual compensators.
Asked at the end of the webinar whether the new system will work, Mr Maxwell Scott went back to the original aims of the policy: “Will it reduce number and value of claims? Yes. Will it be passed on to consumers? Hopefully. Is it good news for the genuinely injured? No.”
For a recording of the webinar, costing £35, email firstname.lastname@example.org