Association of District Judges Bulletin – January 2018

My heart sank watching the Lord Chancellor, David Lidington, giving evidence recently to the Justice Committee. His now depressingly familiar pursuit of the grossly unfair changes to the claims process for whiplash and soft tissue injuries was very unwelcome, but predictable. As every week passes, it is becoming blatantly obvious to everyone outside the insurance sector that the proposed changes will have no discernible impact upon motor insurance premiums for consumers, with premiums ever increasing due to ‘a range of factors’.

But no, the elements of his evidence that really struck me was his – and presumably those officials advising him on policy – complete lack of knowledge about the claims process and the difficulties that will await Litigants in Person (LiPs) if they are unrepresented. To suggest that RTA claims are “not, I suppose, too dissimilar from an insurance claim of some kind” is baffling. Whilst RTA claims are clearly not amongst the most complex of legal cases, to the untrained LiP unfamiliar with the process or the workings of the Road Traffic Act, they will still appear bewildering and labyrinthine.

Let us suppose that LiPs understand that they need to submit a claim via the online Claims Portal and are able to find it amongst the inevitable endless Google listings by eager CMCs. For their claim to stand any chance of success, they will need to perform a detailed series of steps that will leave many flummoxed or falling foul of the system – customer validation, fraud checks, liability assessment, deployment fault, deployment non-fault, assessment of vehicle damage, uninsured loss and personal injury. How would the LiP obtain the correct TPI information? Would they have access to MIDIS? How would they access AskCuePI and who would pay? Would they know to obtain supporting evidence such as a police accident report? How would they deal with data protection issues?

The issue of liability or causation disputes has rarely been mentioned, but these form a significant number of cases. In May 2017, approximately 24% of the 60,664 new CNFs created had issues surrounding liability. Are we really asking LiPs to navigate any case involving a liability dispute, allegation of contributory negligence, dispute over causation, allegation of fraud or fundamental dishonesty? How would they know to approach witnesses and gather evidence? Deal with expert engineering reports or expert intelligence reports? With many cases falling between the two, with liability not denied but equally not admitted for some time, will the LiP be left in limbo before paid legal representation is permitted or paid for by the Defendant? This is before they would begin the process of obtaining a medical report, presumably through MedCo, calculating losses and expenses, developing a treatment programme and submitting a Stage 2 pack. All whilst they may be recovering from a traumatic incident that may have left them injured and unable to work.

Many may simply be put off from pursuing their rightful claim, but probably not until substantial amounts of the Court’s precious time and resource have been called upon. So much for access to justice. The inequality of arms would be staggering from a purely educational and training perspective alone. To dismiss an RTA claim as being as easy as making an insurance claim for lost or damaged property is absurd. I still hope that thousands of road traffic accident victims are not forced to discover this for themselves.

Association of District Judges Bulletin - January 2018Association of District Judges Bulletin - January 2018Simon Stanfield author of “Association of District Judges Bulletin – January 2018” is Chair, Motor Accident Solicitors Society (MASS) and Partner and Head of Road Traffic Accidents – Technical at Simpson Millar

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