Revealed: Children to be exempt from whiplash portal – for now

Clayden: System will undergo full consumer test

Children and protected parties are to be exempt from the increase in the small claims limit and the new whiplash portal – at least for now – Legal Futures can reveal.

The news comes as the boss of the Motor Insurers’ Bureau (MIB) – which is building the portal – said it remained on track for launch in April 2020, subject to outstanding policy issues being decided in time.

A Ministry of Justice (MoJ) spokesman told Legal Futures that it has decided to exempt, for the time being, children and protected parties from the increase in the small claims limit to £5,000 for road traffic accident (RTA)-related personal injury claims.

“This will mean that children and protected parties will not be subject to the current iteration of the IT platform and the pre-action protocol.

“The government will first consider the experience of non-vulnerable claimants using the new IT platform, before considering whether it should be extended to other claimants, including children and protected parties.”

The decision removes what was likely to be a difficult element to build into the portal, given the need for court approval of any settlement for a protected party.

Dominic Clayden, chief executive of the MIB, spoke to Legal Futures last week on the work it has been carrying out as the MoJ’s delivery partner.

He stressed that the MIB was responsible purely for the technical side of the regime – all policy decisions are the domain of the MoJ.

He confirmed that all RTA claims worth up to £5,000, for both represented and unrepresented litigants, would go through the new portal for accidents occurring after the launch date, likely to from 6 April 2020.

There will be qualifying questions that will aim to filter out cases worth more than £5,000 and litigants will be told about their options if they are.

The system is being created by software developer PEGA using the ‘sprint’ methodology, where the core technology is built in blocks that each last around three weeks. It is currently working on the seventh of 11 planned sprints.

The design details are not needed until the relevant sprint is due. So, for example, the decisions on how the alternative dispute resolution (ADR) element of the system is going to work must be made for the tenth sprint, which will take start around the end of July. (Mr Clayden confirmed that ADR will only be available to litigants in person.)

These decisions – what Mr Clayden called “dependencies” – are the factors that could blow the project off course if they do not go the way the MIB has anticipated.

They also include the final form of the pre-action protocol governing the new regime – “We need them not too vary materially against what we’ve built,” he said – the outcome of the MoJ’s recent consultation on how the system will connect with MedCo, and other issues, such as how to deal ‘combination’ injuries featuring both whiplash and non-whiplash injuries.

On the latter, the MoJ has asked the Judicial College to provide guidance.

The availability of rehabilitation is another outstanding issue. Mr Clayden said the system would ask claimants a series of questions that would enable insurance company to decide whether to offer it.

The non-injury elements of a claim – such as credit hire and vehicle repairs – will be dealt with by the insurers on a subrogated basis under the parties’ policies as now.

But all things being as they should, a full beta test should start in late October/early November until next March – Mr Clayden was clear that, counter to some fears, this will be a full consumer test, albeit using dummy data.

The MIB will commission a customer experience research company to sources test participants who represent a selection of unrepresented claimants, while professional users will also be invited to take part.

There will be a number of ‘change windows’ through the public test to allow for improvements and fixes, and the MIB will consult with the MoJ to determine what will represent a successful test.

A phrase that has been doing the rounds of late is that the portal will be a “minimum viable product”, but Mr Clayden said it would be better than this sounded. “It’s a term that tech people use meaning ‘it’s got to work properly and well’.”

It also means the MIB is not focusing on elements that are not necessary for day one, such as the ability to integrate the system with the existing portal for claims worth up to £25,000.

The MoJ has decided against this, for the time being at least, and Mr Clayden said the complexity of doing it now “would risk stability of this product and add a lot of work that isn’t needed to get it up and running”.

Claimant lawyers have criticised this lack of integration, but he suggested it was “good to wait to see if it is worth doing” – how many claims will fall out of the new portal and into the existing one is unknown.

There have also been questions about whether lawyers and insurers will have enough time to adapt their own systems ahead of next April, but Mr Clayden said they would.

To enable professional users to integrate their technology with the portal, API specifications allowing each system to talk to the other are being built in four sprints. Each one will be shared with a focus group before sharing more widely with the industry. The first one should be made available next week.

Mr Clayden added that, since the new system would only apply to accidents after 6 April, there would be a lag before litigants or lawyers actually started using it. Law firms will have a “choice” on when to go live with it.

Another source of criticism has been a perceived lack of stakeholder engagement, which Mr Clayden said he was disappointed to hear and did not accept.

Pointing to an upcoming legal sector seminar that will have room for up to 300 people, he said: “I feel we’ve done an awful lot of stakeholder engagement.”


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