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Response from the judiciary to the whiplash/SCT consultation identifies their key barriers to change as well as a potential way forwards

One of the less welcome responses to the consultation ‘Reforming the Soft Tissue Injury (‘whiplash’) Claims Process’ received by the MoJ which was submitted on the final day of the available window has now been made public.

Summary

The consultation response from the judges clearly indicates the lack of involvement they have had in the reforms process so far, and it may be this which is at least in part behind the sceptical approach taken, and the fears which they express about extra demands on the judicial and court process becoming too great as they struggle to deal with increasing numbers of litigants in person.

But at the same time, the paper demonstrates that if it is decided that the proposed new Online Court needs to be part of the solution in the post reform implementation package, then with the commitment of time and resource,  it might be possible to overcome judicial nervousness in time for that new court being operational in 2019.

The consultation response

It comes from the judges who make up the newly established Civil Executive Team headed by Lord Justice Briggs, the Deputy Head of Civil Justice. The CET now has responsibility for judicial oversight of proposed reforms or changes to civil procedure. As such, the response gets its teeth stuck into the part of the government proposal which deals with the proposed increase in the level of the Small Claims Track in relation to injury claims.

The response can be seen to be setting out the fears which exist on the part of civil judges generally, both senior and junior, including from Briggs himself who remains influential following his ongoing work on the proposed new Online Court. Designated Civil Judges who run the regional courts have been consulted. As have district judges who conduct fast track trials, who presumably have spoken also on behalf of the deputy district judges who mainly deal with SCT trials. And the Master of the Rolls has approved the response too.

Access to Justice

The judges say they do not “seek to address the merits and demerits of the proposal head-on or in full”, and limit their paper to responding to questions 13-15 in the consultation.

But their concerns if not their opposition is fairly clear. They say: “It is obvious however that there are serious Access to Justice issues for those with genuine but modest PI claims in a proposal which would remove over 90% of RTA, EL and PL claims from a fast track with fixed costs recovery to an SCT with minimal costs recovery, and thereby cause many claimants to be self-represented when bringing claims against parties backed by insurers who are able to engage the services of experienced lawyers.”

Consulting with the judiciary

While Access to Justice is then the starting point of the judges’ response, they go on as we might have expected them to do to look at the implications that the increase in the SCT limit will have on the ground, which is the effect on the courts that will have to deal with the cases.

‘You have not consulted us in advance as you ought to have done’ seems to be the complaint. They have “a serious level of dismay that a proposal with such serious implications for the management and delivery of civil justice has not been made the subject of discussion with the judiciary before being launched as a public consultation”.

And they complain too about the “very short” consultation period and for good measure they add that it was “laid partly over a holiday period”.

The main issue – dealing with more litigants in person

The judges expect that many if not most PI claimants with sub £5,000 claims will be unable to obtain legal representation unless they have BTE cover.

The judges see that an SCT rise to £5,000 will mean there will “undoubtedly be a very large increase in the number of LIPs”. In turn, this will add to the need for more judge time being spent on each claim. The minimum effect that they anticipate will be a doubling of judge time, but more likely tripling or quadrupling it.

The factors they identify behind this fear are threefold:

  • The need for judge-assistance at trial which will lengthen the trial

  • The lack of legal assistance in preparing/presenting the case

  • More frequent in-person CMCs so that the judge can input into or direct how the case should be presented

 

Effects of more LIPs

The judges expect as a result of fewer lawyers representing claimants that there is “likely to be a substantial reduction in the proportion of claims settled before trial”, as well as an increase in the proportion of claims going to an appeal. Both of these factors will exist because of the loss of a lawyer to give guidance. They think that there is a “high probability” that settlement rates at the level which the MoJ expect won’t be achieved.

They look on the present system positively and see it as involving essentially “bulk litigation conducted by seasoned professionals according to rules and procedures which they have played a large part in developing, and which encourages co-operation between them”.

They speak approvingly of the parts of that system currently in operation including:

  • The portal encouraging early admissions and usually agreements as to quantum

  • Stage 3 hearings between experienced advocates before experienced DJs and often being dealt with in a concentrated way at particular courts in a specialist way – Birkenhead again being praised by LJ Briggs

  • Liability disputes falling out into the fast track and being dealt with by experienced lawyers either towards settlement (with a higher settlement rate than on the SCT) or at trial

Reduced litigation rates?

The judges are they say very doubtful that the increased burdens they expect to carry will be cancelled out by any reduction in rates of litigation. Their concern is that “the reduction in case volume assumed in the Impact Statement will come nowhere near cancelling out the consequential increase in the demands upon court and judicial resources”.

They are clearly concerned that any savings from dealing with a lower number of claims in overall terms will outweigh the “additional burden on resources” as far as the court process is concerned.

Each court fee paid will have in reality to be seen as buying increased judicial and court staff work, so “thereby reducing the substantial current profitability of the civil courts”.

Or alternatively the issuing of fewer claims will reduce court fee income in civil claims where they say that income stream “props up the court system as a whole”. Nor do they think that a further large rise in issue fees can sensibly be considered.

Their position in a nutshell

Perhaps their position comes down to this sentence within their response:

“There is probably no way round the simple proposition that if insurers are to be relieved from bearing the burden of the preparation of cases for meritorious claimants (because the claimants will no longer recover fixed costs), then the claimants will need the additional and expensive assistance of the courts and the judges to be able to prepare and present their cases. There is no sign in the Impact Statement that this likely consequence has been addressed.”

The Online Court or the portal?

Whatever is made of the judges’ views on how the reforms would impact on the courts, it is worth looking closely at the part of their response which considers what role the Online Court may have to play in a future solution, as of course it is the same Lord Justice Briggs who is the author both of the consultation response as well as his report proposing the establishment of this new court.

As already seen, the response has noted approvingly the role currently played by the portal in the handling of these claims. While the judges note that the portal operator has said it will co-operate in designing and developing a LIP friendly portal, the judges are concerned whether that can in fact be done, at least in as “efficient and effective a form” as what we have now.

And the judges think that the Pre-Action Protocols which support the portal “are designed to be learned and applied by professionals”.

They ask also whether the basis upon which the portal is funded can survive the loss of fixed costs in 90% of its case load?

Development of the Online Court

Perhaps somewhat reluctantly, the judges accept that the new court could be part of the solution, if the timing is right.

They say: “It is possible that, in time, the Online Court may play a major role in (partially) replacing lawyers in such a way as to enable PI claimants to navigate the court system and obtain the compensation to which they are entitled. But it should not be assumed that it will entirely succeed in fulfilling that role, let alone in sufficient time.”

They see that the new court is designed to “produce something similar” to the portal, but only after issue of proceedings.

They say that the new court is not currently being planned to accept PI claims, “but the contingency that it might have to do so has been recognised (though not yet funded)”. They are currently unsure whether it can be re-designed to assist, and say that it should not be assumed that it can fill the gap.

The current position in relation to the development of the new court is that many of what are called “decision trees” for different types of claim are being developed. They believe that new trees would be needed for each type of PI claim involved.

They accept that this might be relatively straightforward for simple RTA claims, though “PL and EL claims are likely to prove much more difficult”.

The timing of the Online Court

The current position, the judges say, is that the Online Court is unlikely to be available until 2019 at the earliest. They say “there is no prospect that a fully-fledged Online Court will be available to PI claimants before 2019, due mainly to the lengthy process of designing and piloting the online guidance and associated IT”.

Even then they are concerned about PI claims being the first to use the new process, saying that “claims by LIPs against experienced professional opposition funded by insurers are not an ideal type of claim for the court in its infancy”.

Conclusion

The lack of advance consultation by the MoJ with the judiciary in relation to this reform may not be entirely surprising, in view of the fact that the rationale behind it is a good way away from being court-related in origin, but clearly the judges expected more involvement at an earlier stage, as has been the case for instance with the Online Court. In any event, judicial involvement will be required ahead in the process changes which will be needed in support of the reform, or at least the element of them involving litigation.

The concerns expressed by the judges are clearly based on a view that more hard work lies ahead for them in dealing with a greater number of LIPs in the future, though their comments risk dwelling too much on those points when a new process for dealing with affected claims needs still to be designed, and there will remain the potential as Briggs recognised in his final report of claimant solicitors continuing to have involvement in claims either on a contingency fee basis, or as the MoJ recognise at specific stages of a claim for a fixed fee.

The judges’ consultation response accepts the potential for the Online Court being part of a process solution, though it appears somewhat reluctantly, and the need for investment to achieve an extension in the direction of injury claims is fairly noted.

The question of timing is important. Previously, we had heard from Briggs of an intention that the Online Court would be up and running by 2020. The potential for implementation a year earlier in 2019 is now identified and the possibility may now exist of a joined up approach between implementation of a whiplash/SCT reform package alongside the development of the new court.

Contact

For more information please contact Simon Denyer, Partner on +44 (0)161 604 1551 or email simon.denyer@dwf.co.uk

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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