MASS Chair, Paul Nicholls, updates the Liverpool Law Society on the claims process and the pandemic, and the impending reforms
After a few weeks of false optimism, the darkness of the pandemic appears to be drawing rapidly in again. Further restrictions, lockdowns in all but name, economic malaise and daily grim news headlines appear to await us all. The tough year that we have all experienced will certainly stretch well into 2021 at least impacting all our lives.
With so much suffering during the pandemic, those of us working in the claims sector have been acutely aware of how tough it has been for motor accident victims these last months. Whilst the number of car journeys fell dramatically during the national lockdown, accidents still occurred, particularly amongst pedestrians and cyclists, and there was more speeding and dangerous driving. Motor accident victims have faced more limited police resources, traumatic conditions in hospitals for relatives largely unable to visit their loved ones and severe restrictions on bereaved families unable to fully pay their last respects. Accident victims have been discharged as quickly as possible to free-up hospital capacity for dealing with Covid-19 patients, often with little or no support, and continue to face increased waiting times for further surgery and access to only limited rehabilitation.
With most courts closed during the coronavirus lockdown, civil claims are being pushed back even further in the growing backlog of cases. The Ministry of Justice and HM Courts & Tribunals Service have of course introduced several measures to try and speed up the process. At least 10 new temporary Nightingale courts have been established with more earmarked, including in Chester and Liverpool. Liverpool Crown Court is one of a handful of courts around the country to trial evening and Saturday sessions.
Whilst of course welcome, these are still likely to prove insufficient to cope with the backlog of cases, even before the coming winter and second wave. Back in April the Institute of Government estimated that an additional £220 million funding would be necessary over two years to clear the backlog of court cases. This has probably doubled in cost by now and may get significantly worse over the winter months. Significant investment will be required if our civil justice system is not to deteriorate further. Urgent action is still needed. Empty but unsold court buildings in England and Wales should be rapidly refurbished and brought back into operation to help deal with the backlog and further temporary Nightingale courts will be needed with a suitable policy for recruitment of staff with the necessary skills and experience.
There have been several measures introduced to mitigate the impacts of Covid-19 and to try and keep the claims process moving. We will have all experienced an increased use of remote hearings, medical assessments, and rehabilitation and the circumstances have necessitated their introduction. These certainly have benefits in terms of time and travel savings and have allowed claims to progress, particularly those where liability is not disputed. Whilst remote assessments and hearings have been effective for some, we would also like to see further work conducted to sort out various practical issues, for instance, ensuring that all parties having access to the right documents and sufficient access to digital communications for all. It would be helpful to have a consistent platform to use and for courts to operate in the same way. Differing platforms or rules between court centres become hard to follow and are more likely to lead to errors especially in case or bundle preparation. Different and quite convoluted orders have been experienced and there appears some uncertainty on what to do, compounded by the fact that communicating with the court is now slower due to the backlog of cases.
We would also like further evidence, studies and debate before digital medical examinations become a permanent feature of the claims process. For years we have been campaigning for the introduction of compulsory and professionally performed medical examinations partly to combat fraud and whilst the system is far from perfect, we would not want to automatically move to digital examinations without careful consideration of the evidence and whether standards are being maintained. It is also clear that whilst remote examinations may be beneficial for some individuals and types of injury, it is certainly not the case for all. We also anticipate possible disputes over the fees that will be paid by insurers.
Rehabilitation is another area where accident victims have been adversely impacted by the pandemic. With hospital appointments largely cancelled, the rehabilitation that has happened has been conducted remotely via telephone or video calls. Due to their condition, many more severely injured victims have been entirely unable to access the necessary rehabilitation they so desperately need.
Our major concern though is that whilst remote hearings may work well when both sides are professionally represented, self-representing litigants may be at a distinct disadvantage. The Government’s reforms, still planned for April 2021, will be a major move towards digital transformation of the legal process with the new online Portal dedicated to encouraging more self-litigants.
The use of digital communication and remote hearings will not suit all sections of society. Significant areas of the country have insufficient broadband capacity to rely upon when giving evidence via video platforms and this is unlikely to improve until at least 2025. The cost of telecommunication fees should be considered, and appropriate rule amendments or guidance made for recovery of such fees as a disbursement. Whilst this example may be regarded as a small fee, in volume this could become a significant. Self-litigants with disputed claims will be forced to wait for extended periods of time to get the justice that they deserve with the current backlog and the situation is only likely to get worse after April next year. Ultimately accident victims must not be disadvantaged in anyway by the digitilisation of claims, regardless of where they live, their financial circumstances or physical or mental capacity. It is our duty to campaign for a full, fair and equal process for all.
Paul Nicholls, author of ‘Update from MASS for Liverpool Law Magazine’ is Chair, Motor Accident Solicitors Society (MASS) and Senior Partner at Nicholls Brimble Bhol Solicitors
You can read the full Liverpool Law Society Magazine here.