Government rejects multiple calls to reform whiplash claims process

Whiplash: Only minor changes agreed

The Ministry of Justice (MoJ) has rejected all but some technical changes to the Official Injury Claim (OIC) portal put forward by both claimant and defendant representatives.

These included support for introducing alternative dispute resolution into the system, as was originally proposed.

This was dropped due to funding issues and concerns about the capacity of ADR providers to meet demand. Instead, the expedited process set out in CPR PD 27B was put in place.

The MoJ said yesterday that it did not “currently consider this change to be warranted, given the existing functionality of the service and potential future modernisation work”.

“Given the availability of the PD27B process, the additional negotiation options integrated into the OIC process such as the ability to make three offers/counteroffers, and the potential additional support from the HMCTS small claims mediation, we do not believe the case has been made to justify the development of an additional dispute resolution scheme for OIC claims.

“It should also be noted that the government intends to introduce integrated post-issue mediation for unspecified money claims in the future, following its implementation for specified money claims. This will of course, though, only apply to claims which leave OIC for court.”

Other ideas coming out a series of industry roundtables last summer that were not accepted included allowing the recovery of counsel’s fees and enabling claimants to go to court with liability and quantum disputes concurrently, rather than consecutively as now.

The former would “fundamentally change” the small claims track into a costs-bearing environment and the MoJ said the case for it had not been made.

The latter, meanwhile, would be a “fundamental departure from the process set out in the RTA small claims protocol” and it was “difficult to justify” merging these two separate court processes, “especially considering potential wider implications for other types of claims”.

The MoJ added: “Progressing the quantum aspect of a claim whilst there is still the possibility that the defendant will be deemed not liable for the accident would run against the spirit of the whiplash reforms, which seek to ensure that compensators only pay out for legitimate claims for which their customers are liable.”

The possibility of requiring represented and unrepresented claimants to follow the same medical evidence process, and a time limit for disclosing report, both suggested by defendants, is separately under consideration by the MoJ following its consultation on revisions to the medical reporting process for road traffic claims, which closed last October.

But claimants will not be able to submit medical evidence when the defendant has denied liability, which lawyers argued would hasten settlement.

The MoJ said: “This proposal would run directly counter to the reform objectives to reduce the disproportionate number and cost of whiplash claims; compensators should not be encouraged to pay out on claims where they deny liability, even if the amount of compensation is relatively minor.

“Further, medical evidence is primarily obtained to support the court, and it being of help at pre-action stage cannot outweigh this.

“Claimants can already use any medical evidence they might have as part of a liability dispute, but it is not appropriate to use it to force a settlement where one may not be appropriate.

Some technical changes to the OIC were made last November, such as a new notification triggered when the court pack has been generated.

The OIC said updates now under consideration following the roundtables included more advanced functionally when claims were being transferred between compensators, and prompts when there has been no activity for a period.

But defendants’ request for the ability to update liability at any time was rebuffed. “This would be a fundamental departure from the small claims PAP [pre-action protocol] and we have not been provided with evidence that compensators wishing to change their liability decision is a common occurrence, thus requiring a change to rectify the issue.”

The MoJ also turned down their call to be able to log complaints about claimants – this was for either professional regulators or the court to deal with – remove cases that have been inactive for a year or introduce a time limit for arranging a medical appointment.

Claimant lawyers’ bid for the right to make the first offer was denied too. “Whilst we know that this is the process in Claims Portal, the OIC process and the PAP have been designed so that this is explicitly not the case.

“The PAP process was designed this way largely to protect unrepresented claimants from making unrealistic offers; it was felt that requiring the defendant – with greater experience – to make the first offer would keep negotiations more proportionate.

“The claimant making the first offer would also likely be much more beneficial to represented than unrepresented claimants, and such a differential in benefits would be problematic.”

The OIC portal will be one of the issues discussed at this year’s PI Futures, which takes place on 19 September in Manchester.

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