The Ministry of Justice (MoJ) has rejected a call for an early review of the tariff for the Official Injury Claim portal, although personal injury solicitors are continuing to lobby for it.
The Motor Accident Solicitors Society (MASS) argued that the MoJ was wrong to say there was insufficient data from court judgments to make an effective assessment of the whiplash tariff a year on from its introduction.
MASS has consistently argued that the tariff was far too low, did not recognise accident victims’ pain and suffering, and detrimentally affected the ability of potential claimants to seek legal advice.
Under the Civil Liability Act 2018, the government had to consult with the Lord Chief Justice on the tariff figures, although Lord Burnett’s advice has never been published. The Act also provides for a review of the tariff after three years.
According to then justice minister Lord Wolfson – speaking in April 2021 in Parliament when the statutory instrument setting the tariff was approved – Lord Burnett said it would be beneficial to review the tariff figures earlier than that.
Lord Wolfson said: “We do not know now whether we will have enough data in a year’s time to make an informed assessment, so I cannot commit to an early review, but we are open to the possibility.
“We must first make sure there is evidence available to undertake a meaningful review from which effective conclusions can be drawn.
“Having considered the points made by the Lord Chief Justice, we will not change our position on the tariff amounts or the judicial uplift of 20%, but we will undertake an analysis of the available data after a year with a view to considering whether an early review is appropriate.”
The comments were repeated soon after by then justice minister Alex Chalk MP when taking the regulations through the House of Commons.
MASS said that, following the OIC’s first anniversary in May, it “reminded” the Ministry of Justice of this commitment.
Lord Wolfson’s successor, Lord Bellamy, replied last month, saying it was “not appropriate to undertake a review at this time”.
He said that, whilst there was sufficient data available on the pre-court process, with only two judgments on quantum disputes in the same period, “the available court data is significantly below the threshold for an effective assessment of the tariff”.
Nor was it appropriate to consider any “inflationary adjustments” at this time, he added.
The letter concluded: “As it will take some time before the courts can consider an appropriate number of claims, we have decided to revert to that statutory timetable and will undertake this review by May 2024.”
MASS has this week written to Lord Bellamy and Lord Burnett to argue that a fall in claims of over 50% “suggests that genuine accident victims are being dissuaded from proceeding with legitimate claims”.
It continued: “Whilst the process was designed to dissuade claimants from making so-called ‘frivolous claims’, the levels of compensation, also being undermined by steeply rising inflation, mean that many potential claimants are simply unable to seek legal support.”
MASS chair Sue Brown commented: “Court judgments are a separate issue from the tariff of damages being awarded within the OIC portal. We cannot see how many thousands of further judgements would impact any assessment on the operation of the tariff and OIC.
“We do not believe that this is a valid excuse for rejecting an early review of the tariff, as supported by the Lord Chief Justice, parliamentarians and stakeholders such as MASS.
“We are also disappointed that the government has rejected the impact of rampant inflation which is further corroding the value of damage awards for accident victims. An 11% increase in the tariff that was supposed to ‘inflation-proof’ the awards for three years has now been eroded in a single year.”
Ms Brown insisted that this was “too important an issue to park until the statutory review in 2024”.
“This is a fundamental issue about making changes to the system to better balance the declared policy objectives of the legislation whilst preserving access to justice.”
In a separate development, the Association of Personal Injury Lawyers (APIL) has called on the MoJ to exclude personal injury claims from its plan to make mediation compulsory for all small claims worth up to £10,000.
Speaking ahead of the consultation closing next week, APIL president John McQuater said an involuntary hour of mediation post-issue would be “too late to benefit most injured people” with claims falling within the scope of the OIC.
“The vast majority of claims in the OIC settle before trial. Even when they don’t settle pre-issue, the work has already been done and it’s time for a judge to make a decision.
“To add a mandatory phone call in at that stage is bizarre, and a duplication of efforts, especially when early ADR was omitted from the system.”
The MoJ dropped initial plans to include alternative dispute resolution within the OIC.
“Firms are finding their own ADR solutions and building them into their internal processes, which is a preferable approach to an ill-suited one-size-fits-all provision,” Mr McQuater said.
He added that the proposed telephone mediation would not be appropriate for non-motor, non-OIC cases valued up to £1,500 either.
“What may be suitable for small claims involving faulty goods and landlord disputes over deposits is not appropriate for people with bodily injuries who are up against well-resourced insurers. ‘Low-value’ does not mean that the claim is simple.”