Clayden: Testing to begin in October or November
The head of the body building the new whiplash portal has insisted that the organisation “does not dictate policy to ministers”.
Dominic Clayden, chief executive of the Motor Insurers’ Bureau (MIB), also revealed that the cost of setting up the portal – which is funded by the insurance industry – would be £15m.
He did not give a figure for running costs, which would depend on how many cases went to alternative dispute resolution.
Speaking to the APIL conference in Birmingham last week, Mr Clayden said beta testing of the portal would take place in October or November this year, enabling the MIB to respond to feedback in advance of the reforms coming into force in April 2020.
Mr Clayden said the Ministry of Justice had taken a decision that claims involving children would be handled by the new portal, though it was yet to decide what the safeguards would be.
He said the MIB was aware of claimant and defendant organisations running on “old, unsupported software”, and the MIB was “not going to integrate with that”.
From the floor, consultant solicitor Nicholas Bevan accused the MIB of becoming a “mini-ministry” with “executive powers and influence on the government”.
He went on: “I’m worried that, given the importance of the MIB, there is a lack of accountability and governance”. He compared the MIB to a “black box”.
Mr Clayden responded that he “certainly did not agree that we have an influence on ministers”, and people had a choice whether to use the MIB.
“We do not dictate policy to ministers,” he emphasised.
This included on still unanswered questions, such as what will happen to cases where liability is denied.
Bob Neill MP, chair of the justice select committee, has asked the government a related question, according to a letter published last week.
In a letter to Ministry of Justice spokesman Lord Keen following release of a consultation on the future provision of medical reports under the new regime, Mr Neill said: “We note that the consultation paper assume that, for the majority of claims – ie that where full or partial liability is admitted – the at-fault compensator would pay for the medical report.
“We would be grateful if you could let us know how the new system would deal with payment of reports in cases where liability is denied, in particular where the claimant is of limited means.”
In its response to the consultation, the Association of Personal Injury Lawyers raised the same issue. Immediate past president Brett Dixon said: “All an insurer will need to do is to deny liability and the claimant will most likely go away.”
He explained: “An injured person would have to put up £180 for the medical report to take the claim any further. Many people do not have the means to pay £180 up front.
“Also, they may not feel confident against experienced, bankrolled, defendant lawyers on their own, and worry about the risk of not getting the money back.
“Many will be deterred from pursuing genuine claims. In the case of those with whiplash injuries lasting three months, it will feel like a big outlay for £225 in pain and suffering compensation under the tariffs. The uncertainty would be too daunting.”
Marketing collective First4Lawyers was similarly concerned. Managing director Qamar Anwar said: “While it appears sensible for the MoJ to extend the MedCo system to unrepresented claimants under the Civil Liability Act regime next year, there are several questions left unanswered.
“First, how is a litigant in person to know what type of report is required? How will a person unfamiliar with the claims process identify what kind of doctor they need to see or indeed if the claim is serious enough to fall outside the new small claims limit and portal process altogether?
“Second, the consultation does not explain why unrepresented litigants will have their medical report funded by the at-fault insurer, but solicitors for represented claimants will still have to pay upfront and recover the cost later.
“Third, the consultation says the report will be funded where there is a partial or full admission of liability. So, what will happen when the defendant insurer denies liability?
“Does the claim stay within the system? Does the MoJ expect the litigant in person to pay the cost of the report themselves? Should the litigant in person then seek after-the-event legal expenses insurance to cover the risk of the insurer not repaying the cost, and if so, how are they going to find and fund it?”
Mr Anwar said this “seemingly simple solution” proposed by the MoJ “actually exposes how poorly thought-through the whole reform process has been”.
Meanwhile, in a later conference session on the impact of Brexit on the personal injury world, Mr Clayden warned that the future was “highly uncertain”, and the ability of someone who had an accident abroad to make a claim in their own country could be lost.
“The government has asked for everything, but nothing is agreed until everything is agreed.”
Mr Clayden said a no deal Brexit could take personal injury lawyers and victims back to the 1950s and 1960s, where they had to bring claims in the foreign country where the accident took place and in a foreign language.
He said France, Poland and Romania were taking a particularly hard line and have said they would not compensate the uninsured.
Mr Clayden stressed that his “strong advice” was that if victims had a claim, they must issue it before Brexit, after which there would be “absolutely no legal right of recovery”.
He added: “We won’t take a point on premature issue – just do it.”
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