This article first appeared in Legal Futures, 17 October 2019
The Ministry of Justice has provided an unsatisfactory response to a Freedom of Information Act request on how the figures for the new whiplash damages tariff were calculated, lawyers have claimed.
The revelation came as part of a wide-ranging attack on the Civil Liability Act reforms yesterday by Paul Nicholls, chair of the Motor Accident Solicitors Society (MASS).
He also called on insurers to stop make pre-medical offers, ahead of them being banned as part of the reforms next April.
It emerged at PI Futures last month that the government was looking at whether the tariffs for injuries with a duration of up to two years – first revealed two years ago – needed updating.
Speaking at MASS’s annual conference in Sheffield, Mr Nicholls asked whether the Lord Chief Justice had been consulted about them, as required by the Act.
“What is that process? Will it be made public? How will differences between ministers and the Lord Chief Justice be resolved?” he said.
In response to MASS’s Freedom of Information request about where the figures came from, the MoJ said “real life data”, judgments and the Judicial College guidelines.
Mr Nicholls said: “We then asked who came up with the figures – because they’re nothing like the guidelines or judgements, and were told ‘analysts’ and ‘MoJ officials’ decided them.
“Who are they? Why are they better than the judges? We’re not happy with that response, and we’ll be taking it further.”
MASS also intends to issue its own analysis of the tariff shortly, with Mr Nicholls describing them as “arbitrary” and “ridiculous”.
He also pointed out that the original MoJ consultation said the reforms would capture whiplash claims with a value of up to £4,350 – within the proposed increase of the small claims limit to £5,000.
However, the tariff as currently set meant that it could capture claims with a current value of £7,000 – which will be £3,750 under the new regime.
“The scope of this change is far greater than envisaged or ever discussed. This is ludicrous and unfair. Injuries at that level generally involve a number of medical consultations, extensive treatment, and pain that lasts for two years.
“The unintended consequence of the reforms is that these individuals, whose claims cannot be considered ‘low-value’, will be caught by the reforms and left without legal assistance.
Mr Nicholls argued that the proposed claims process has “morphed into something far removed from the original intention of combating fraud to a process where claimants are supposed to represent themselves, professional legal advice is squeezed and the savings are not passed on consumers but retained by insurers”.
When then Chancellor George Osborne started the reform process in 2015, and later in the 2017 Conservative manifesto, fraud was the focus.
“So what are we going to have?” Mr Nicholls asked. “A new portal with no automatic ID checks, searches and fraud searches.” What it will do is verify email address and identify multiple unconnected claims from same IP address.
The solicitor said the path to implementation in April 2020 “remains unclear at best”, with the timetable becoming tight and a “long list of unresolved issues”.
These included mixed/multiple injuries, what happens when liability is disputed, and how duplicate proceedings will be dealt with.
He added: “It continues to look as if there will inadequate provision to support the digitally excluded. MoJ have consistently said that the third/charity sector are being consulted about how they might support LIPs, but there is little evidence of this and major players in the sector are saying that they have not been consulted. Who is right?”
Mr Nicholls conceded that the new portal would “probably deal well” with a straightforward claim with no special issues or disputed liability; but beyond that, the system as currently designed “will falter”.
“Nothing MASS has heard on the reforms leads us to believe that the portal and its work processes are in any way ready.”
He also attacked insurers for continuing to make pre-medical offers. “We’re constantly hearing that lawyers are gaming the system for their own advantage. Why is the ABI not getting its own house in order? It is rank hypocrisy…
“I call upon all insurers to stop making pre-medical offers now. There is no need to wait for the legislation to be implemented. You should adhere to the spirit and letter of the legislation.”