#whathopefortheunrepresented – September 2016

#whathopefortheunrepresentedKieran Magee, MASS Regional Co-ordinator – Yorkshire and Partner and Head of Compliance for True Solicitors LLP in Leeds 

The Government is seeking to remove the rights of injured people to seek legal advice where they suffer any injury valued under £5,000, and are banning compensation claims for “minor” soft tissue injuries. The Judicial College Guidelines has a section for valuing neck injuries which includes a subsection for “minor” soft tissue injuries.

When the ABI asked the Government to increase the Small Claims track limit to £5,000, the ABI and the Government were concerned that an increase would encourage the growth of the largely unregulated claims management company (CMC) industry. A blunt solution to this problem would be to ban all soft tissue injury claims valued under £5,000 and it seems the Government, by adopting the same injury classification as the Judicial College Guidelines, intends exactly this.

The reality, however, is that such a measure would prevent virtually every claimant who had suffered a soft tissue neck injury from pursuing a compensation claim. This is because it is impossible to advise a recently injured claimant whether the value of their claim will exceed £5,000. According to the Judicial College Guidelines, a minor soft tissue neck injury valued at £5,000 is one where the claimant has experienced symptoms for 1 to 2 years. Therefore, the best advice a solicitor could give to a prospective claimant who suffers a soft tissue neck injury, no matter how serious the symptoms are at the outset, is to go away and come back in 18 months if the symptoms have not resolved. Only then will the legal representative know if the claimant is entitled to compensation.

The same uncertainty arises in relation to an increase in the Small Claims track to £5,000. How can a solicitor who receives instructions from an injured accident victim provide any meaningful advice about legal costs, when the claimant’s liability for costs is determined by how quickly they recover? If the claimant recovers within a year to 18 months, they pay legal costs out of their damages, if not the defendant pays their legal costs. In what way does this represent access to access to justice?

The alternative is the claimant attempts to present their claim as a litigant in person. The Ministry of Justice says these cases are straightforward and are easy enough to be done without legal representation, but if this was the case why do insurance companies instruct solicitors to defend them, and exactly what part of the claims process does the Government believe is straightforward?

When this issue was considered by the Transport Select Committee in 2013, a raise in the Small Claims track limit was rejected because it would impair access to justice and there was no evidence that an increase would discourage fraudulent claims.

Perhaps the Government will explain who will notify the injured self-represented litigant about the Pre-Action Personal Injury RTA protocol, and who will advise them that they must submit their claim electronically using the RTA portal? Will litigants in person be given guidance on how to use the portal? As users of the existing portal will testify the portal is not user friendly and submitting claims via the portal is far from straightforward even for accomplished users. Furthermore, who will explain to self-represented litigants the various time limits that apply, and how to respond to the various different portal responses? There are at least ten different ways that a claim can leave the RTA portal, so who will assist the litigant in person when this happens?

What will a litigant in person do when an insurance company denies liability? Will they know what evidence to gather and how to present this at court? Are they expected to have a detailed knowledge of established case law so that they will understand why an insurance company is denying liability or suggesting that the claim be dealt with on a split liability basis

How will a litigant in person respond to an insurance company who spuriously alleges their claim is fraudulent and refuses to pay? I agree that fraudulent claims must be challenged and that people who bring fraudulent claims should face the full consequence of their criminal actions, but insurance companies left unchallenged by unrepresented litigants will continue to contest legitimate claims without any proper evidence.

Even where liability is admitted how will a self-represented litigant obtain treatment or arrange a medical examination? Who will advise a litigant in person about the losses they can and cannot claim for and the documentary evidence that will be required to prove their losses? How will a self-represented litigant claim the cost of a replacement hire vehicle where the insurance company disputes it?

Where the insurance company denies liability or makes an unreasonably low offer who will advise a litigant in person about the procedure for challenging the insurance companies offer in court. Is it at all likely that a litigant in person, in addition to obtaining and paying £216 for a “fixed cost medical report”, would be prepared to pay the court issue fee of £205 and the hearing fee of £545?

In any event how can insurance companies be trusted to properly and fairly compensate injured accident victims? Unlike solicitors who are under a duty to act in the best interests of their clients, insurance companies owe no duty whatsoever to injured third party claimants. Insurance companies, who are regulated by the FCA, are required under the Treating Customers Fairly scheme, to demonstrate that they consistently deliver fair outcomes to their customers, but does this code apply to third party claimants.

As solicitors our conduct is governed by the Solicitors Regulatory Authority which requires that we act under a strict code of conduct which includes a requirement that we act in our client’s best interests. On a day-to-day basis we meet this obligation by ensuring all injured clients receive their proper and full entitlement to compensation.

It seems astonishing to me that the Government believes that an insurance industry which has miss-sold payment protection policies, mortgage endowment polices, and complex insurance products to the general public on an industrial scale, can be trusted to properly compensate injured victims of road traffic accidents to whom they owe no duty of care.

How can we trust insurers to deliver on their promise and #whathopefortheunrepresented.

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