Legal Futures, 20 September 2018
There are considerable doubts about whether the Ministry of Justice (MoJ) will meet its April 2020 target to introduce the whiplash reforms, this week’s PI Futures event heard.
Even if it does, the change to the small claims limit for other types of personal injury is unlikely to be introduced at the same time.
It was also claimed that the tenor of attacks on the Conservatives by opponents of the Civil Liability Bill have backfired.
Delegates at the sold-out event in Liverpool were told that parliamentary arithmetic – with the bill an ‘English votes for English laws’ measure – meant there was little chance it would be defeated in Parliament.
However, there was still plenty to play for in the secondary legislation setting the compensation tariff and the Civil Procedure Rules amendment to change the small claims limit.
Matthew Maxwell Scott, a director of the Access of Justice campaign group, predicted that there was “no way on God’s green earth” that the new online portal would up and running by the target of April 2020 – already a year behind the original schedule – as government IT projects were always delayed.
“They don’t really even know what it is they’re trying to buy, let alone what it might look like or what it might cost,” he said.
Simon Stanfield, chair of the Motor Accident Solicitors Association, said it was possible that the portal could be ready for testing by October 2019, as the MoJ has said, but was cautious in saying only that it “remains to be seen” whether it would then be fully ready for roll-out six months later.
Brett Dixon, president of the Association of Personal Injury Lawyers, had little confidence personally that the portal would be ready.
Another question was whether the government has made decisions on vital questions such as what would happen to claims if liability was denied, or how special damages claimed by litigants in person would be dealt with.
Mr Dixon, who also sits on the Civil Procedure Rule Committee, said nothing has come through the committee, “and other things I’ve seen haven’t filled me with confidence that these decisions are being made. But if these decisions aren’t made, that will delay implementation”.
In a later session, Martin Heskins, chief executive of MedCo, said it was one of the stakeholders working with the government – as its system will be accessible from the portal.
“We’re working to April 2020 but until MedCo knows exactly what the MoJ wants from [us], we can’t do anything.” This included knowing how many litigants in person the MoJ expected to use the portal.
The small claims limit increase for other personal injury claims was “likely” to be delayed beyond April 2020, Mr Dixon said; whiplash claims were the priority and the MoJ had listened to warnings that it could not do everything in one go.
Mr Stanfield said much of the recent narrative in Parliament was about “a vicious Tory attack on accident victims” and the party’s defence of insurers’ profits, but this had backed the government and Conservative MPs into a corner.
“Framing the debate in such terms strengthens their resolve, making concessions less rather than more likely,” he said. Opposition needed to be more nuanced.
Mr Stanfield and Mr Maxwell Scott were both critical of Labour, with the former saying that with other issues “looming large”, it had been difficult to get its MPs “really motivated on our behalf”.
Criticising Labour’s “lacklustre” efforts, he went on: “A poor turnout in the Lords succeeded in snatching defeat from the jaws of victory.
“Yes, even if the votes on the two substantive amendments had been made in the Lords, the government would probably have sought to reverse them in the Commons.
“But they would have been forced onto the offensive, to return the bill to something approaching its original state, rather than defending the status quo.
“We would have seen ping pong between the Commons and the Lords as they sought to resolve their differences. That was a very real missed opportunity in the Lords.”
However, Mr Stanfield argued that, without “robust campaigning by the claimant lobby”, the government’s reforms would probably have been implemented by now.
He said that “behind the scenes” there had been a “remarkable degree of co-operation between claimant lawyers’ groups”.
All three speakers praised justice minister Rory Stewart, who has become involved with the bill since it arrived in the House of Commons, for listening closely to the issues that they were raising.
They also agreed that the insurance industry had not finished with its push for reform – it would look in time to raise the RTA small claims limit to £10,000 and increase the other PI limit too.
Mr Maxwell Scott argued that there had been a “collective failure by our industry” to properly stand up for itself and that this needed to change for the battles of the future.
“We were always on the back foot with the reforms, when we needed to be on the front foot. We should have been noisier earlier to make sure these things did not happen at all.
“Timidity in the legal profession is a problem. It’s too conservative. This has to change or we will keep on being beaten up.”