This article first appeared in Legal Futures, 14th June 2019
Claimant solicitors have criticised the Ministry of Justice for cutting corners in developing the new whiplash portal “in order to meet the politically driven deadline of April 2020” – and suggested it still cannot be met.
The Motor Accident Solicitors Society (MASS) said it was discriminatory and unfair that claimants with and without legal representation would have different claims processes.
The draft “customer journey” for those bringing claims through the new portal has just been published, along with more detail about how the ADR option will work.
He was “disappointed” by the decision to run parallel portals – one for whiplash claims below £5,000 and one for all other claims – rather than have one integrated system.
“This has long been considered the worst option available… Having dual operating portals with no transfer of data between the two systems will increase costs and result in duplication.
“It is generally not possible to value injury claims until receipt of the medical report and inevitably there will be many claims which will need to be transferred between the two portals.
“Having to re-submit claims will be time consuming, expensive and very confusing for LiPs [litigants in person], insurers and claimant representatives alike. It creates the potential for extensive satellite litigation over who starts what, where and when, and possible data protection concerns.”
Mr Nicholls noted that several aspects of the new LiP portal would not be available for legally represented claimants – the MID and AskCUE databases that need to be searched before a claim starts will be free for LiPs and claims management companies to use, but not solicitors.
“The principle appears therefore to have been accepted that different processes will apply to legally represented and non-legally represented claimants. This is discriminatory, unfair and will result in a highly complex system.”
Mr Nicholls argued that there was little benefit in requiring represented claimants to use the LiP portal, whereas there would be “significant benefits” in allowing them to continue using the current portal – including the stage 3 process.
Other concerns included the lack of detail about how minors and other protected parties would bring claims and have them approved by the court – “who will arrange and pay for counsel’s advice on quantum, who will draft, issue and serve the court proceedings, who will pay the £308 court issue fee and who will represent the claimant at the heart?”
Mr Nicholls said children and protected parties should be excluded from the new tariff and from any increase in the small claims limit, like ‘vulnerable road users’ already have been.
Ignoring the existence of rehabilitation, credit hire and repair costs as part of the system was a “serious mistake” too, as this would be “deeply confusing to claimants, create significant loopholes and lead to further satellite litigation”.
Further, Mr Nicholls cast doubt over the integration of MedCo with the new portal – questioning how LiPs would understand the various issues around medical reports – and its expansion to include experts for non-soft tissue injuries, within the timetable.
He also suggested that £180 may be inadequate for a report from a non-soft tissue injury expert, leading to a “sub-optimal service for accident victims”.
More broadly, the MASS chair criticised the level of consultation undertaken by the Ministry of Justice and MIB, which is building the portal.
Stakeholder meetings have been cancelled or delayed, while views expressed – even where insurance and legal representatives agreed – have been ignored, he said.
“It appears that design decisions are being made ahead of court rules being finalised and there is a risk that either design is expected to dictate the rules of civil justice or there will need to be a re-build.
“Solicitors and insurers need sufficient time and information to adapt their work processes, design workflows for the new system and integrate with the new portal processes.”
Mr Nicholls claimed that the build process “is having to cut corners to achieve the political deadline of April 2020” and that it is not working.
“The new LiP portal must be fully fit-for-purpose and properly tested ahead of launch, and we cannot see that this will be possible with so many important decisions still to be taken and development work still to be undertaken.”