Failed objectives

This article first appeared in Modern Claims Magazine, Issue 24, March 2017

Failed objectivesAfter months of uncertainty, the Government’s intentions are now abundantly clear. In the words of Justice Minister Sir Oliver Heald, they wish to disincentivise minor, exaggerated and fraudulent whiplash claims. It is apparently no matter that, despite all the warnings, the proposed changes will singularly fail to achieve at least one of these objectives. Raising the small claims limit and the introduction of a ridiculously low fixed tariff system may indeed dissuade some claims, but it will come at the expense of legitimate claims for justice and a likely increase in fraudulent claims.

In the absence of professional legal support, with lawyers, in the cold calculation of the MoJ, finding “alternative economic
activities”, many accident victims will face three options. They may choose not to pursue their right to compensation as an injured party, even though they have paid for this protection with their compulsory motor insurance premium. They may embark upon the potentially difficult path of self-litigation, although how they will be supported to do this or indeed pay for the information necessary to conduct a claim remains deafeningly unexplained. Or they will be drawn into the shady world of CMCs, embraced by the grateful arms of claims farmers eager to exploit their vulnerabilities.

The latter option will undoubtedly lead to more fraudulent claims, and the Government seems intent on actively encouraging it with their myopic view of the claims market. For all the heralded changes to CMC regulation, the system appears incapable of preventing cold calls and their active encouragement to pursue dodgy claims. Forget the millions of pounds worth of fines issued. Only 3% of them have reportedly been paid, as those behind the call centers fade once more into the background.

The Prisons and Courts Bill, with the tariff, uplift and ban on premedical offers, will by now be busily progressing through the
House of Commons. Hopefully the rationale behind the measures will be challenged more rigorously later in the House of Lords. Later this year, the regulations required on the definition of a whiplash injury, damages, uplift and regulation of the ban on premedical offers will be drafted, hopefully consulted upon and then introduced as secondary legislation. When the final proposals are implemented on 1 October 2018, in whatever shape they emerge from this process, one thing is already clear: the Government will have already failed in their stated objectives, and at a considerable
cost to the rights of the motor accident victim.

Simon Stanfield is MASS Chair and a Partner at Simpson Millar

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