Whiplash: Portal not delivering access to justice, says top law firm user
The average time for a low-value motor claim to settle in the Official Injury Claim (OIC) portal has risen to an extraordinary 609 days – some 20 months – as it starts to get to grips with the thousands of ‘dormant’ cases sitting in the system.
The news came as the law firm with the biggest number of OIC cases has argued that the process is still “fundamentally failing to deliver access to justice”.
The OIC measures the lifecycle of a claim by the days between when a claim enters the system and when it is told it has settled.
Having been around 380 days on average this year up until May, it shot up to 609 days in June, which the latest OIC data report attributed to a number of older claims close during the month “due to the dormancy work we have been undertaking”.
This refers to cases that have been left in the system without action in a reasonable time. The OIC acknowledged that “some claims will need to stay in a particular stage while details are worked through by advisors, but our insight suggests dormancy is playing an increasing role in being a barrier to claims progressing”.
For example, of the 54,385 claims in the system where liability has been rejected and no decision made by the claimant or lawyer on how to proceed, 38,024 are classed as dormant because they have been at that stage for at least 180 days.
The OIC said it has shared this data with the top 20 law firm volume users of the system in a bid to tackle the issue.
“This work will be slow progress where users are needing to cross reference their own systems with the open claims within the portal. It is also worth remembering that while we continue to work hard to reduce this pocket of open claims, there are still claims entering this status every day.”
There are also 76,419 claims awaiting a medical which are classed as dormant.
The spike last month came from a focus on reducing dormant claims at the final stage of the process, where an offer has been accepted but is awaiting the lawyer to review and accept the fees element.
Otherwise, the figures showed that the proportion of claims brought without legal representation fell in the last quarter from 12.7% to 12.1% and that only 27% of claims were just for the tariff compensation for whiplash with or without minor psychological injury.
North-West firm Carpenters handles more OIC cases than another other firm and Stuart Hancock, its head of business implementation and services, has urged compensators to change the way they challenge injuries so that the OIC can deliver access to justice to claimants.
Writing for the Motor Accident Solicitors Society, he said compensators were concerned about more people claiming for injuries such as knee, jaw or wrist pain than before the reforms.
“The answer is rather simple; such injuries are explicitly asked for within the SCNF [small claim notification form], based upon pre-reform consultation that identified the most common injuries caused by road traffic accidents, so are nothing new.
“Claimant lawyers act as the gatekeeper to ensuring claims are not exaggerated, a point frequently overlooked and that includes collating medical evidence.”
This was shown by the fact that litigants in person were almost three time more likely to seek an uplift to their damages than represented claimants, “showing they do not have a true understanding of what exceptional injuries are and reputable lawyers are ensuring claims are not exaggerated”.
Mr Hancock said the medical expert sometimes recommended commissioning a further report from a specialist. But if their fees exceed the recoverable figure of £750, defendants would on occasion refuse to pay more.
“We have, for example seen cases where the initial medical expert has recommended an opinion from an ophthalmic surgeon in relation to an eye injury or problem. In seeking to obtain that report we have been quoted a fee of £4,000 for the expert’s report. This means that the individual must find £3,250 to fund the investigation of the injury.
“If the claim remains on the small claims track, this fee will not be payable by the at-fault insurer, even when the injury is established to result from the accident. This is not access to justice.”
Too frequently, he continued, compensators did not accept the medico-legal opinion. “The argument is simply that the expert is ‘wrong’ in their conclusion. However, no evidence to support that view is provided, no allegation of causation is raised, nor are any questions put to the expert.
“The correct procedure for the compensator here would be to drop the claim out the portal, however, that is not carried out to avoid paying fast-track costs.”
Mr Hancock also argued that compensators were still failing to apply last year’s Supreme Court ruling on valuing mixed injury claims.
“We attempt to negotiate and settle but are too frequently left with no option but to litigate. We also routinely receive tariff-only offers below the correct tariff value. This elongates the lifecycle, adds unnecessary touch points for all parties and creates frustration to the claimant.”
He called too for action on compensators requesting claimants to attend their local county court to give evidence. “This is not consistent with a streamlined process for low-value small track claims.”
Mr Hancock said that, although there were no penalties or sanctions where a compensator delayed or acted unreasonably, “courts are now starting to make costs orders for unreasonable conduct”.
But the claimant must get to a court hearing to achieve that, again elongating lifecycles as well as increasing taxpayer costs.
Unless and until the Ministry of Justice stepped in – and Mr Hancock urged Labour to return to reforms that the previous government rejected last year – the industry had “to work sensibly, collaboratively and constructively to move the dial in the right direction”.
