Chairman’s Speech, MASS Conference 2015

Chairman’s Speech8th October 2015

Welcome back everybody. I hope you’ve found the first morning session informative and interesting.

I’m delighted to see so many of you here today.

Our sector has been through a lot in recent years.

I know that it’s been tough for many of the firms represented here. And we continue to face challenges.

We will need to continue to adapt and evolve to survive in the changing market and regulatory environment.

But through all the commercial pressures we face, we must never forget those people we represent.

The accident victim must remain at the core of everything we do.

Already coping with their injuries, the accident victim has been further wounded in recent years. Taken as a whole, they are now less likely to have legal representation against insurers and will receive less compensation for their injuries.

Ideally of course we want to return to a fairer system where injured claimants receive full compensation commensurate to their injuries. But it has to be accepted that this does not look likely to happen in the foreseeable future.

We are having to learn to live within a system where we are no longer able to ensure that our clients receive 100% of the compensation agreed or awarded to them.

It simply is not feasible to handle fast-track claims properly within the fixed costs regime, without deducting success fees from our clients’ damages.

Injured claimants deserve a good service from their lawyer.  In order to deliver this, law firms need to ensure that all staff have appropriate expertise and training, and can spend as much time on a claim as the claimant and the claim require.

MASS members are committed to providing an excellent standard of service to clients.  We need to be very careful to ensure that when trying to improve efficiency to enable us to work within the very tight margins we now have, we do not do so at the expense of client care.

Whiplash remains a real injury, and claims do not represent easy money. Every element of a claim still has to be proven, and this requires experience and skill on the part of the lawyer representing the claimant.

MASS will continue to press the new government for a better and fairer balance between claimants and defendants.

We must ensure that those with claims of lower value can still access professional legal advice. Any suggestion that, as a measure to address the issue of fraudulent whiplash claims, the right to damages for pain and suffering should be removed from those with whiplash injuries is misconceived.

The law should not treat injured accident victims differently simply because they are suffering whiplash rather than some other injury, and should not be changed to the detriment of honest claimants because of the behaviour of a dishonest minority.

MASS believes that if there is a misconceived perception that a whiplash claim is in some way “easy money”, the major driver of that perception over the past decade or so has been the practice of some insurers of making pre-medical offers. While many insurers have stopped this practice, others are still making these offers despite the amendments to the Pre-Action Protocol seeking to prevent them. This must stop, and insurers must also end the practice of third party capture ahead of independent legal advice.

We need better enforcement of data protection legislation. I don’t entirely believe that there can be many people who are persuaded to bring a fraudulent claim just because they receive 50 nuisance calls, but the nuisance calls are certainly a factor in bringing the personal injury business into disrepute.

We are learning to live with the fast-track fixed fee regime. But we need to press for a mechanism for regular review of the levels of costs, to ensure that all claimants continue to receive full access to justice.

Law firms cannot be expected to run claims at a loss, and it cannot simply be assumed that no matter how low the costs are, there will always be someone willing to deal with the claim. Or if there is, that that someone will be competent and independent.

The new court fees are a major worry. The government needs to understand that huge increases in court fees cannot simply be somehow absorbed.

However claims are funded, increased court fees affect litigants and will prevent some valid claims from being brought before the courts.

Personal injury claimants can very seldom afford to pay court fees themselves, but are also very seldom eligible for fee remissions.

Law firms who in the past would have funded court fees and other disbursements for clients may be unable to afford to fund these massively increased fees.

Disbursement funding loans are available for some types of claims, but at a cost to claimants, further eroding their compensatory damages.

The increased fees unfairly discriminate against poorer claimants. And it is simply manifestly unfair to levy a hypothecated tax on civil litigants to fund the parts of the courts and tribunal service, notably the criminal courts, that cannot be self-funding.

Access to justice is about equal access to the legal system, and to deny someone legal assistance in seeking justice is to deny them equality before the law.

The growing numbers of litigants-in-person is indicative of the problem we have and the challenge to our legal system.

Access to justice is not just a convenient slogan for solicitors to hide behind.

It is an unbreakable principle at the core of our justice system, not a price tag.

There is a panel session today dedicated to MedCo and I look forward to the discussion.

But we need to try  not to lose sight of the fact that MedCo has not really even started to do what it was set up to do.

The core objective was to improve the quality of medico-legal reporting in whiplash claims. MASS fully supports this objective.

As part of that, the MoJ considered it necessary to sever financial links between solicitors, MROs, and medical experts.  And to achieve this not only by rules to ban solicitors from instructing those with whom they have links, but also by taking control of the means by which solicitors select experts.

To date this is the element that has had the most attention, but it is just one factor.

The other elements, in particular the accreditation process itself which will be in place in early 2016, and the processes around auditing individual experts, are still being developed.

They have the potential to make real improvements so that the medical report gives a true indication of the injury the claimant has suffered.

MedCo will take time to effect change, and realistically until the accreditation and auditing elements are in place, it is unlikely to have any impact at all on claimants or claim numbers.

MedCo will have an impact if it is given a chance to work, and, alongside other measures to drive fraudsters and opportunistic claimants out of the system, has the potential to deliver an improved system for both insurers and injured claimants.

MedCo may be far from perfect at the moment, but it is in everyone’s interests to make it work, and we hope that the ongoing MoJ review will result in beneficial changes.

But I must say this. MROs and others must stop trying to “beat the system” and stack searches in their favour. The alternatives to MedCo could be far worse for everyone in the claimant sector.

The Secretary of State for Justice, Michael Gove, has a vision of a more technologically efficient, less complex and less bureaucratic civil justice system. This will, in principle, be welcomed by most claimant solicitors working in RTA, familiar with the Claims Portal and now MedCo. Efficiencies that equally benefit claimants and defendants are to be welcomed.

The other area where real progress has been and continues to be made is in combating fraud – which has blighted our sector for too long and continues to cast a shadow across our crucial work for genuine victims.

We await with interest the final recommendations of David Hertzell’s Insurance Fraud Taskforce within the next few months.

We must work collaboratively across the entire sector to combat fraudulent claims at every opportunity. We know we will not agree on everything, but we’ve shown that when the different parties sit down and talk, a great deal can be achieved – on data sharing, on measures to combat fraud, and working together on the MedCo board and sub-committees.

And everybody needs to work together on formulating consumer-focused education and publicity programmes to combat the ‘have-a-go’ culture.

Similarly, we sincerely hope that the CMC review being conducted by Carol Brady will lead to the worst excesses – unsolicited phone calls, texts and emails – being stopped. Undoubtedly some of the calls originate from overseas and will be difficult to eradicate. But more needs to be done to prevent personal details being sold to these organisations. Existing data protection legislation must be enforced and better policed.

There should be an extension of the ban on unsolicited texts and cold calls by all in the industry. If considered necessary, we need to increase penalties and sanctions and have a ‘zero tolerance’ policy across the board.

Solicitors are not allowed to take on claims generated by cold calls – but clearly some are. The SRA should and must be taking robust action when solicitors are found to be engaging in such behaviour.

There must also be improved liaison and co-ordinated action between all the relevant regulators on cold-calling.

All of these current initiatives – MedCo, accreditation and auditing of MROs; combating fraud; and the CMC review – have the potential to benefit claimants.

But I said earlier that we continue to face challenges.

We will of course all have noted that having fallen during 2013 and 2014, motor premiums appear to be rising again. The ABI says that £595 million of savings have been passed on to motorists – which we welcome – but insurers say premiums will start to rise because the cost of claims is rising.

A report earlier this year from the Institute and Faculty of Actuaries stated that there has been a 12% reduction in the frequency of bodily injury claims, a 19% reduction in the overall costs of whiplash-style injury claims and a 65% reduction of fixed legal costs for each claim made.

Accident victims must not suffer in order to maintain insurers’ profitability, and fund dividends.

As you are, I am proud to represent accident victims. I am proud that I am able to help injured people get the quality medical care and treatment, therapy and money to help them try and return, as far as practicable, to the same quality of life they enjoyed before the accident.

We must ensure that those who suffer injury are not made to feel that in making a personal injury claim they are doing something wrong.

We have a system that seeks to support people who are injured as a result of the negligence of others. We need to fight to preserve that system, and MASS will always seek to defend the rights of the accident victim. The people we represent deserve nothing less.

Thank you and I very much hope you enjoy the rest of today’s Conference.

Susan Brown is Head of Personal Injury and Professional Negligence, Prolegal

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MASS promotes the highest standards of legal services through education and representation in the pursuit of justice for victims of road traffic accidents.