1. BARRIERS TO JUSTICE IN PERSONAL INJURY CLAIMS Adam Ross

2. 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

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

4. 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

5. 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

6. 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?

7. 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”

8. The Whiplash Tariff

9. 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

10. 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

11. 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

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