Legal Futures, 18 October 2018
The man charged with delivering the whiplash portal said yesterday that he expects to meet the timetable of putting it out for testing next autumn and launch in April 2020.
This was despite the new chairman of the body whose conference he was speaking at – the Motor Accident Solicitors Society (MASS) – expressing doubts that deadlines would be met.
Dominic Clayden, chief executive of Motor Insurers Bureau (MIB), said he was “comfortable” with what he described as a “realistic” timetable.
Legal Futures understands that the tender to build the portal went out in August and the MIB is now deciding between two potential suppliers.
Mr Clayden told the conference in Sheffield that the build would start at the end of December or early January.
“Six to nine months is not an unreasonable build time, and actually when you look at it it’s not the most complicated process.”
He said there was an initial “three-day lock-in” in the summer with stakeholders working through what the core process was going to look like, and they will be reconvened in December to “sense check” the plan before the IT build begins.
The portal will be for road traffic accident claims worth up to £5,000 and accessible by litigants in person (LiPs), lawyers, legal expenses insurers, accident management companies, McKenzie Friends and anyone else bringing a claim on behalf of another.
Mr Clayden explained that after the claim was entered, the insurer would look at it to consider liability. There will then be a process to obtain a medical report, which will go to the insurer to make an offer.
If the claimant decides not to accept an offer, they will be offered the opportunity to go through a form of ADR. Mr Clayden said the MIB was holding a meeting for ADR specialists later in the month to discuss how this could work.
“We’ll put it out [next autumn] at a point where it’s good enough for people to play with… Like all beta testing, I am expecting to everyone to look at it and say ‘That’s rubbish’; that’s the point of putting beta testing in.”
However, in his first address as chairman of MASS, Paul Nicholls said: “For our part, we really do not know yet whether April 2020 is an achievable date for a fully-functioning and fit-for-purpose system.
“Right now, there appears to have been little thought about how special damages work adequately for LiPs.
“There are currently no proposals to assist claimants who are unable to resolve their case through ADR, or choose not to do so, and who need to use the court process. How will non-injury claims be assisted post-reforms without the costs subsidised by injury claims?
“MIB know that they have a big job on their hands and are under no illusions that Lord Keen’s ill-informed belief that RTA small claims are simple and straightforward are quite frankly nonsense. The developers will discover that for themselves.”
Mr Nicholls – founding partner of West Midlands firm Nicholls Brimble Bohl – added that “adequate safeguards” must be in place to support LiPs through the new process, particularly those from vulnerable groups and the “digitally excluded”.
In a separate panel debate, Alan Hayes, chief legal officer of claims law firm Carpenters, predicted that even if the MIB met its schedule, “I doubt whether people [LiPs] will use it”.
He pointed to PPI claims as an example of where most consumers sought a third party to progress their claim even though they could do it themselves.
Antony Greensweig, who has led insurer Ageas’s work on claims reform, admitted that the likely low level of damages under the new tariff – £235 for a soft-tissue injury lasting up to three months – would provide “even less incentive” for insurers to challenge potentially fraudulent claims.
Nick Delaney, head of business development at First4Lawyers, questioned how LiPs would be able to cope with the process themselves. “Who’s going to look at the medical report to check that nothing’s been missed?” he asked.
Also in his speech, Mr Nicholls urged the Ministry of Justice to publish its long-awaited response to the second part of the consultation held two years ago, the first part of which led to the Civil Liability Bill.
Part two covered issues such as credit hire and rehabilitation.
Mr Nicholls said: “Many organisations, including insurers, make huge sums – amounting to millions of pounds – from non-fault hire and repair claims, in addition to medical reports and rehabilitation.
“For example, hire companies pay referral fees to insurers to provide hire services, and the at-fault insurer pays inflated hire costs demanded by the hire company to fund the referral fee it pays to the non-fault insurer.
“Competitively it is in the interests of insurance companies to maximise the amounts that at-fault insurers have to pay to their rivals.”
These sums could be substantially more than the amounts at stake in either damages or legal costs.