Whiplash legislation could see claimants denied access to justice

Latest findings from the Association of Personal Injury Lawyers (APIL) have highlighted the impact of the Civil Liability Act on the right to justice, after figures show that car insurance premiums have not reduced despite the cost of injury claims to motor insurers falling.

Dishonest claims for whiplash are often seen as a catalyst for driving up insurance premiums but Brett Dixon, president of APIL believes there is not a connection between the two.

He said: “Assertions that fraudulent whiplash claims have driven up the cost of car insurance premiums in recent years are simply not true. The insurance industry’s own figures show that proven fraud is only present in 0.22 per cent of all motor-related insurance claims. An even smaller fraction of that relates to personal injury claims and whiplash a fraction of that.

“There are many factors which affect the price of premiums, yet people with whiplash injuries always seem to take the blame. Overwhelming insurance industry evidence shows that there is no correlation between personal injury claims and the high cost of motor premiums. The cost of injury claims to motor insurers has fallen by 21 per cent since 2013, meanwhile our premiums have risen by 19 per cent.

“The Government needs to turn its attention elsewhere to keep the cost of motor insurance premiums down.”

In December 2018, the Government passed the Civil Liability Act to change the way it calculates whiplash claims and it will completely transform the way it handles these claims.
As part of the Act, the Government introduced a new tariff which will require medical evidence as proof of injuries and courts will be able to increase the amount of compensation, they award people who claim.
The Ministry of Justice (MOJ) is pushing the Civil Liability Act through Parliament, originally planned for this April it has been delayed until 2020 but solicitors including NV Legal have condemned the decision to increase the small claims limit for soft tissue/whiplash injuries from £1,000 to £5,000.

Increasing the limit could mean access to justice is denied as solicitor’s fees will not be recoverable for soft tissue injury claims below the new £5,000 threshold. This means claimants will have to represent themselves, taking on the large corporate insurers on their own. They will be at a huge disadvantage as they will be unfamiliar with the rules and legalities of pursuing a claim. They will also have to fund items such as court fees and medical reports themselves.

The Government envisages the public will pursue their own claims, but without a qualified solicitor to guide them through the process, this will be difficult for many. Most are likely to be deterred from even bringing a claim.

To claim for soft tissue injuries below the £5,000 threshold, claimants will use a new online portal which the Government is creating, however, the MOJ still needs to implement the system. The idea behind the portal is that unrepresented litigants will be able to proceed alone without representation but not everyone, including the elderly, will have access to online technology. There is also the issue of court resources and the increasing number of litigants in person the court system is already facing.

Solicitors have also raised concerns over the proposed £5,000 limit for soft tissue injuries and what classifies as a ‘minor’ injury. The MOJ believes claims under this amount are ‘minor’, however, many injuries which fall into this bracket have long-term implications.

Following the amendment to the legislation, symptoms persisting for two years will fall into this category.

Nick Davis, solicitor and director at NV Legal, said: “To put it in some context, a neck injury for one to two years will attract an award of £3,810-£6,920, according to the Judicial College Guidelines, this is not exactly a minor injury. What undoubtedly will happen is that unregulated companies will employ non-legally qualified staff to advise for a percentage of any award or a set fee, win or lose. Unfortunately, those injured through no fault of their own will find themselves under compensated, without proper access to justice.”

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