Dixon: Dangerous proposal
The Association of Personal Injury Lawyers (APIL) has condemned plans for the “premature disclosure” of medical reports on the Official Injury Claim (OIC) portal.
APIL also warned that banning lawyers from instructing medical experts until defendants made decisions about liability could lead to further “significant delays” in the claims process.
In a consultation on changes to the medical reporting process for RTA personal injury claims valued at up to £5,000, the Ministry of Justice (MoJ) proposed in July that report providers, rather than solicitors, should upload medical reports onto the OIC, so the process was the same for represented and unrepresented claimants.
APIL said: “It has always been the process that a party has time to look at the reports, for example for fact-checking. This is not problematic in practice and should not be changed.
“The information on the report is privileged and it is wrong to consider a process that removes that pre-existing right from a party and forces disclosure as soon as uploaded onto the OIC.
“This will undoubtedly risk significant satellite litigation as it is at least arguable that a party cannot be forced to waive privilege by an online process that is not part of the court system, let alone capable of ordering a party to do so.”
APIL said it did not “see the rationale” behind a proposal to make claimants wait for defendants to decide on liability before allowing them to instruct experts.
“The key issue is not when the instruction occurs but when the expert’s report is actually obtained. Later instruction would lead to a later appointment with the expert, which would exacerbate existing concerns about delays.
“We believe it is counterproductive to aim to address delays in the OIC in the consultation while simultaneously proposing something that could further impede the process.”
The association agreed that the cost of medical reports should increase in line with inflation.
However, APIL said a new independent body should be set up to ensure that there was data transparency at the OIC.
There were several “gaps”, such as data on settled claims by injury duration or average settlement values, neither of which were broken down into represented or unrepresented claimants.
“This lack of breakdown means we cannot properly understand how compensation awards vary between unrepresented and represented claimants with similar injuries.”
The Motor Insurers’ Bureau, which runs the OIC portal, “failed to published all of the research” it commissioned into the experiences of people who went through the process.
“APIL has only had access to that data through a freedom of information request. This highlights the lack of transparency and the need for an independent oversight group to identify what data and research should be collected/undertaken and published.”
Brett Dixon, secretary of APIL, commented: “Forcing premature disclosure of medical reports by getting experts to upload them to OIC without due consideration and fact checking is a dangerous proposal which would ultimately erode injured people’s rights.”
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