BARRIERS TO JUSTICE IN PERSONAL INJURY CLAIMS Adam Ross

Background General damages and special damages – the role of the Judicial College Guidelines Three tracks in court proceedings Small Claims Track: ≤£10,000 and PI general damages (PSLA) ≤£1,000 Fast track: £10,001-£25,000 Multi-track: >£25,000 The £1,000 threshold has not risen since 1991: adjusting for inflation = £2,000 Limited costs recovery in small claims – £80/100 + VAT RTA and EL/PL Portal (up to £25,000, liability admitted): Settled before hearing: costs of £500 + VAT and medical report of £216 Determined at hearing: costs of £1,000 + VAT, issue fee of £308 and medical report of £216

Court Fees Issue fee  Hearing fee £25 - £335

Remission Remission scheme is limited For any level remission, savings <£3,000 for £1,000 fee; <£10,000 for £5,000 fee Income <£13,000 for full remission Have to pay £5 for every £10 over the income threshold Currently, solicitors’ firms lend Claimants money to pay issue and hearing fees, usually as part of a CFA arrangement in which the solicitors recover up to 25% of general damages and past special damages

Whiplash Claims Government concerned about the high number and cost of whiplash claims: George Osborne in the November 2015 Autumn Statement pledged to raise the PSLA damages threshold to £5,000 and abolish damages for “minor” soft tissue injuries RTAs are about 80% of all personal injury cases and vast majority of these involve soft tissue injuries to neck, back or both Government says the number of claims has gone up while the number of reported collisions have gone down. Cold-calling by claims management companies? Comparison with EU levels: greater than expected. According to World Bank, UK has 79% more vehicles per kilometre of road compared with the EU average, so more low-speed car collisions

The MOJ Consultation MOJ says motorists could expect savings of £40 per policy. Assumes 85% of insurance company savings being passed on. Realistic? No enforcement mechanism Savings from the CFA reforms and increase in portal limit to £25,000 not passed on Consultation ran from November 2016 to January 2017: “a consultation on measures to disincentivise minor soft tissue injury claims & arrangements for personal injury claims in England and Wales” Why disincentivise claims for minor soft tissue injury claims?

The Outcome Outcome published in February 2017; implementation date is 1 October 2018 PSLA damages limit for RTA claims now £5,000; for all other PI claims it is £2,000 Ban on offers to settle without medical evidence in RTA-related whiplash claims RTA-related whiplash claims and minor psychological injuries, e.g. shock and travel anxiety now have a tariff system for injuries predicted to last for up to two years “the Government recognised that whilst the amount of compensation paid to claimants for low level claims is still too high, there may be a case that those with genuine injuries (albeit minor ones) should receive some compensation for PSLA” – too high according to whom? Discretion to increase/decrease tariff amounts by up to 20% in “exceptional circumstances”

The Whiplash Tariff

RTA PSLA Damages now in the Small Claims Track 6A(f) Injuries leading to collapsed lungs from which a full and uncomplicated recovery is made £1,920 to £4,660 6A(g) Fractures of ribs or soft tissue injury causing serious pain and disability over a period of weeks only up to £3,460 7I(q) Loss of part of the little finger £3,460 to £5,130 9A(c) Nose: fractures including displaced fracture with recovery only after surgery £3,460 to £4,470 9A(d) Cheekbone: fracture including where some reconstruction surgery is necessary but there is complete recovery with no or only minimal cosmetic effects £3,810 to £5,660 9A(f) Loss of or serious damage to one front tooth £1,930 to £3,460

The Effect (1) £400 awards were made 25 years ago for a 1-2 week whiplash claims; now for 4-6 month claims Soft tissue injuries now out of sync with other types of injury, e.g. cuts, bruises and burns with recovery within three months are up to £2,150 Comparisons: €600 for flight delays over 4 hours; £800-£8,400 Vento bottom band Unless whiplash symptoms are expected to last for 16 months (i.e. are quite serious), or significant loss of earnings, a claim will be allocated to the small claims track Insurer will be legally represented. Will Claimants pay for lawyers? Likely to wipe out damages Arguments about liability, contributory negligence, mitigation of loss, betterment Claims will not settle as much – effect on judiciary and HMCTS of LIPs

The Effect (2) Claimants will have to: Pay court fees upfront Obtain and pay for medical records Identify, instruct and pay for medical / engineering experts MOJ says there is much guidance available online Civil Justice Council’s Guide is 30 pages The Bar Council’s Guide to Representing Yourself is 72 pages Those who do not speak English as a first language or have disabilities – physical or mental – will be disadvantaged The elderly and unemployed will not have loss of earnings claims, so will likely be on the small claims track

Thank you Contact London 10 - 11 Bedford Row London WC1R 4BU DX 1046 London / Chancery Lane T 020 7269 0300 Bristol 3 Orchard Court, St Augustines Yard Bristol BS1 5DP DX 78229 Bristol 1 T 0117 930 5100 E clerks@oldsquare.co.uk W oldsquare.co.uk @OldSqChambers