MoJ: No guarantees
The civil servant overseeing the Civil Liability Act reforms yesterday declared his confidence that the 6 April 2020 target for implementation would be met.
However, David Parkin stressed that “ministers will not rush this”. He continued: “What they want is something that is quality and is ready, and they will not implement something that doesn’t meet both of those criteria.”
Mr Parkin, deputy director for civil justice and law at the Ministry of Justice (MoJ), was speaking at a seminar in London to update lawyers on the progress made with the reforms, and particularly the portal being built on the MoJ’s behalf by the Motor Insurers’ Bureau (MIB).
It largely covered issues addressed in our interview with MIB chief executive Dominic Clayden [1] earlier this month.
On meeting the April 2020 deadline, Mr Parkin said: “Can we offer you absolute guarantees? I can’t and wouldn’t wish to, but if we carry on the excellent work we’ve made with the MIB and we carry on with our constructive discussions with the Civil Procedure Rule Committee [on the new pre-action protocol] and we work with you and others on the stakeholder sessions, and testing goes well, then we’re pretty confident we can introduce it for April 2020.”
He indicated that the appointment of a new Lord Chancellor, Robert Buckland QC, may cause a slight delay in various decisions being made – including the response to the consultation on how medical reports will be provided under the portal – but said the change of government and minister was not changing the policy.
During a later question and answer session, however, it became clear that a number of issues remained outstanding, such as whether the MoJ will maintain its present position that represented claimants will not be able to access the ADR mechanism that will be available to litigants in person (LiPs).
Brian Coghlan, a partner at Manchester firm Horwich Cohen Coghlan, said his understanding of the system as currently proposed would mean that a represented party whose claim is disputed by the defendant insurer would have to go to the small claims court for a decision on liability, and then return to the portal to pursue the case, only to have to go back to the court if the parties could not agree quantum.
Mr Parkin said: “It’s fair to say that we’re looking at the scope of ADR.”
There was also concern expressed by claimant delegates that, while there has been a focus on tackling the potential for fraud by claimants, there were no incentives to discourage defendant insurers from playing the system, such as by simply denying liability.
This would leave LiPs having to pay both the court fee and the medical report fee – even if recoverable if successful – to pursue the case in the small claims court. This would cost around £400.
[2]
Richard Hutchinson, who is leading the MoJ’s day-to-day work on the reforms, told the seminar that publicly available management information would show up those insurers which were acting out of kilter with others, suggesting that market pressure would bring them into line.
Mr Clayden said the Financial Conduct Authority might take action over such behaviour, while leaving claims outstanding would increase the amount that insurers have to reserve.
Mr Parkin said the MoJ would also take action if there was “adverse behaviour” from either side.
He added that the MoJ believed the level of court fees that LiPs would have to pay met the test set by the Supreme Court in the Unison case on employment tribunal fees. There were also remissions available for those on low incomes.
On other issues, Mr Hutchinson said he had “absolute confidence” that MedCo – which is likely to be responsible for enabling medical reports in the portal – would be ready for April 2020 as well.
Delegates heard that the final API specifications should be released in October, subject to any late policy changes, while testing for users integrating with the system through APIs will begin in January, two months after public testing of the web portal starts.
Kirsty McKno, who chairs the Credit Hire Organisation, expressed her concern that the MoJ and MIB were underestimating the complications that credit hire could cause even though it was outside the portal, suggesting that the oft-quoted figure that up to 90% of credit hire charges were dealt with on a subrogated basis was a significant overestimate.
These issues will all be discussed at PI Futures [2] on 25 September in Manchester. We are pleased to report that Richard Hutchinson will be joining the opening panel on the reforms.