Whiplash: Guides to help claimants from 31 May
A 64-page users guide aimed at litigants in person who have to navigate the “straightforward” Official Injury Claim (OIC) portal for whiplash claims was published yesterday.
One observer described it as “legal treacle”.
OIC also made available two further guides to support claimants: a four-page Guide to changes to the Small Claims Limit for Injury Claims (Referring to Part 26 of the Civil Procedure Rules) and eight-page Guide to Practice Direction 27B.
The former explains the changes to the small claims track limit and the exceptions, while the second explains the process of moving from the online service to court and sets out what the claimant must do in each instance, as well as detailing the documents needed to support the claim.
Though the government has said people with low-value whiplash claims do not need legal help, the users guide highlights the task facing unrepresented claimants if they have non-whiplash claims that are not covered by the new damages tariff from 31 May.
It says: “You should review the relevant sections of the Judicial College Guidelines (JCG) which will give you an indication of the likely value of this part of your claim.
“As there is no tariff for non-whiplash injury, you will need to negotiate the value of the non-whiplash injury with the compensator once you have requested an offer. The JCG provides you with a starting point for that negotiation and for valuing your claim at the outset.”
The guide provides extracts from the JCG and notes that some of the brackets are “quite wide”. For example, the range for minor eye injuries is £3,710 to £8,200.
It says: “To be able to put a value on your injury you will need to consider the text provided in the JCG to give context to your injury, or you may need to consider the brackets either side to decide where your injury fits best.”
Another area requiring claimants to take on issues usually the preserve of lawyers is whether they can claim the 20% uplift of damages available on the tariff in “exceptional” circumstances.
“To be exceptional the injury must be exceptionally severe and/ or your circumstances have increased your suffering as a result of the whiplash injury (and those circumstances are exceptional),” the guide says.
To make a claim for an uplift, the claimant must explain how they meet the ‘exceptional circumstances’ criteria and what percentage uplift they are claiming.
Where there is alleged contributory negligence, the compensator and claimant can go through three rounds of offer and counter-offer about the percentage; negotiation over the damages offer, where more is being claimed than just a tariff injury, can also happen in a maximum of three rounds.
In the event that liability or damages are not agreed, the claimant will have the option of going to court and the OIC will help them collect the pack of documents they will need.
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said: “For members of the public attempting to use the portal, this 64-page guide is legal treacle. It will confuse all but the most legally savvy claimants and underlines our view that most will give up and look for representatives to manage the claim on their behalf.
“The claims industry will need to prepare itself for thousands of confused customers from June onwards, and it is a pity that the government has yet to spend a single penny on making the public aware of this significant change to their legal rights.”
Solicitor and credit hire specialist Kirsty McKno, managing director of Cogent Hire, said the users guide did not provide customer-friendly information on credit hire.
“There is an information black hole for credit hire, which risks prejudicing the claimant’s right to like for like mobility,” she said.
For example, the guide omits “any explanation or signposting in respect of the issue of insurer intervention that would arise from the question asked about the requirement for a replacement vehicle”, she said.
The whiplash regulations needed to implement the reforms passed the House of Lords on Monday and the first stage of approval in the House of Commons on Wednesday.
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