This article was written for the Association of District Judges Bulletin – August 2017
One of the areas of most interest and real concern to solicitors and District Judges (DJs) alike about the Ministry of Justice’s proposed reforms to the whiplash claims process is the expected growth in the number of Litigants in Person (LIP). Solicitors are certainly not Luddites. We have fully utilised new technologies that have transformed the legal sector over the last 20 years and recognise that the inexorable march to delivering legal services online will continue to develop. Nevertheless, we have a number of concerns about how the new claims process will deliver the best possible service to LIPs without restricting the right to independent legal advice and access to justice.
As DJs will know only too well, an injury claim, even a small one, can still be a complex process involving many stages, with decisions to be made which incur costs. An increased demand for guidance from court staff and the judiciary by LIPs will inevitably place a strain on already extremely stretched resources and valuable court time. Without solicitors assisting to ensure that the Court Service and defendants are not burdened with unmeritorious claims, and that a reasonable approach is taken to the nature and value of the claim, the Court system can only come under further strain. There appears to be little thought for the 12% of British people that have no or little access to the internet, who tend to come from vulnerable groups and who will clearly be adversely affected by any over-reliance on online processing.
There are a variety of potential financial obstacles to justice that have yet to be resolved. It is not clear yet who will pay for the DVLA fee, medical reports, issue fee, application fee, hearing fee, police report, medical records and the costs associated with accessing the Motor Insurers Database and askCUEPI. LIPs will face clear difficulties in accessing these services and if they are required to fund the associated costs, or even most of them, they will face a severe bar to justice. These various fees are currently funded by claimant law firms on behalf of their clients, and recovered from the third party at the end of the case if successful. Most individuals will not be able to fund these claims. Many legitimate self-representing claimants will simply be put off with pursuing their rightful claim, but probably not until the Court’s time and resources have been called upon.
It is not yet clear how a revised claims Portal will deal with issues such as liability, resolving disputes of fact, causation, liability evidence, the complexities of the Road Traffic Act, court rules and protocols and evidence of financial loss. We remain to be convinced that fundamental principles such as access to justice and equality of arms can be protected under the proposed reforms.
Chair, Motor Accident Solicitors Society (MASS)