PI Brief Update

Personal Injury Claims: An Opportunity for Reflection - Neil Sugarman, President, Association of Personal Injury Lawyers

08/09/16. During 2015 the government made it clear that it was looking closely at personal injury claims, including those involving clinical negligence.

In relation to clinical negligence, the government expressed itself concerned about the legal costs associated with what it classed as low value claims. Its definition of low value was £250,000, a figure that might surprise some. Unusually, it launched a pre consultation, in order to inform a formal consultation. It was clear from the pre consultation that the intention was to fix recoverable legal costs and to fix experts fees.

Many interested parties responded sensibly to the pre consultation. The government stated that the consultation would follow and gave a target date which was not achieved. Further dates were set without the formal consultation appearing. It then became apparent that the consultation, as with other government business, would not be launched until after Brexit. It has still not appeared and so far there is no news as to whether and when it will happen.

Some observers might also find it surprising that despite the fact only the pre consultation has taken place, the Civil Procedure Rules Committee was instructed to draft the new rules that would be necessary to accompany the introduction of a fixed costs regime for these cases.

The Association of Personal Injury Lawyers (APIL) is dedicated to advocating for and on behalf of injured people and lobbying to protect their rights. We contend that nobody undergoes medical treatment expecting to end up with a worse outcome. Whilst accepting that mistakes will occur, it is imperative that the injured person is treated justly and fairly. There is something uncomfortable about a situation in which the state tortfeasor can control the ability of the claimant to have access to everything reasonably necessary to prove their case.

Early admissions of liability where appropriate, funded rehabilitation during the life of the case instead of opposing reasonable applications and generally adopting a more collaborative approach would save the NHS large sums in costs. APIL had negotiations with the NHS in 2012 to try to structure a fixed costs scheme for cases with a value up to £25,000. The NHS Litigation Authority walked away. As an organisation we are still willing to try.

In October 2015 the then Chancellor George Osborne in a short paragraph in his Treasury Autumn Statement referred to the cost of insurance premiums and the impact of fraud upon them and implied that the small claims limit in the county court was to be raised and that right to general damages for soft tissue injuries was to be removed entirely. Again, there was to be a consultation about proposals.

Lord Faulks, the Minister responsible for implementation of the strategy and policy attended APIL’s Annual Conference in May 2016 to make the Keynote Address following which he bravely fielded questions from a somewhat hostile audience. He was challenged as to the extent to which the government has carried out its own independent review of the prevalence of fraud rather than relying on insurance industry data (APIL has long been sceptical about that data) and he noted the point. However, it was interesting that his emphasis was also on what he described as “unnecessary” claims.

Of course, Brexit again meant that the consultation could not be launched and now, with a new team in place at the Ministry of Justice there is still no sign of it. APIL has written to the new Lord Chancellor seeking discussions but as yet has not had a response.

In 2012 the then Prime Minister held a summit of major motor insurers in Downing Street. As a consequence he agreed to institute a raft of measures in relation to personal injury claims, including a ban on referral fees, a very substantial further reduction in fixed costs in the existing portal system and the introduction of accredited medical panels to assess claimants who said they had suffered a whiplash injury. The results were largely brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In return, Mr Cameron demanded a reduction in motor insurance premiums.

APIL purchases data from the Association of British Insurers and it has emerged that since that time claim numbers have substantially reduced as have claim costs, but insurance premiums have risen. Following Mr Osborne’s announcement, a junior minister indicated in parliament that the government could not control industry premium setting, despite his proposals.

From APIL’s perspective, we are committed to removing fraud from the system and have worked collaboratively with the insurance industry on a number of initiatives in order to do so.

However, we do not think it right that the removal of the age old right to general damages for genuine claimants, who form the vast majority, is justified on any ground where their lives and bodily integrity have been interfered with through no fault of their own, and certainly not on false perceptions about fraud or the impact of claims on insurance premiums.

Equally, increasing the small claims limit will, from APIL’s research, affect approximately sixty four per cent of claimants and either deny them access to justice or penalise them in losing part of their damages. It also risks the unintended consequence of spawning a still further explosion of unwanted texts and phone calls from the Claims Management sector, something that is universally distasteful and has been the subject of a campaign by APIL called Can the Spam.

Whilst it is for society to decide the extent to which injured people should be compensated, let us ensure that this is only done when in possession of the true facts.

Neil Sugarman
President,
Association of Personal Injury Lawyers

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