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Fringe event at Tory Party Conference highlights challenges ahead to whiplash reform

While the party conferences have their own agendas dictated by the leadership, it is fringe events which can sometimes be relied upon when looking to take the temperature of party members and MPs on key issues. Where the government is functioning without a majority, there is particular interest in looking for clues that may help in working out the likely future path of legislative reform taking into account the parliamentary mathematics.

One event organised by the Social Market Foundation and sponsored by the claimant-friendly campaigning group Access to Justice took place at the Conservative Party conference in Manchester this week. Some of the views expressed during it seem to highlight the potential to find at least a certain degree of resistance to the reforms on the journey ahead.

The event

It went under the title: "A fair, accessible legal system – what price civil justice?" and the speakers included 2 Conservative MPs who were both lawyers, Bob Neill the chair of the Justice Select Committee (JSC), and Alberto Costa who was a member of that committee till the last General Election. The other speakers were Andrew Twambley of the Access to Justice campaign, and David Williams of AXA.

Does the willingness of the 2 MPs to appear at an event sponsored by A2J event show any sympathy to its aims? Perhaps, but we should in any event look at what they said, and should also set the comments made by them this week into context.

Bob Neill MP

Mr Neill was chair of the JSC in the last parliament which ran until the recent General Election was called, and has been re-elected to that role in the new parliament. He was therefore chair of the committee when the ABI and APIL gave evidence to it in February. At the time, we awaited both the government's response to its whiplash consultation and what was to be Part 5 of the Prisons and Courts Bill (P&CB).

In February, Mr Neill seemed hostile to the reform package, saying that it seemed to him that the MoJ was "firing in entirely the wrong direction" with its reforms and ought instead to be tackling CMC behaviours.

However, when the P&CB was published and he had seen the detail of the reforms including the changes from those consulted upon, he was more sympathetic to the government's aims. He saw an "important and valuable Bill" which he wished well in its passage through parliament, though said the JSC would assist in seeking to "make a good Bill better". He was pleased that the government had moved away from a ban on general damages towards a tariff.

At the A2J session this week his remarks may suggest a shift back towards his earlier position, saying now that the insurance industry had a lot more to do to prove their case. He said that the JSC's intention with their new membership was to re-instate their inquiry into the reforms, though the only current inquiry identified by the JSC on their website is the already announced one into the proposed discount rate reform as requested by the Justice Secretary.

Perhaps taking account of those who had invited him, at this week's meeting Mr Neill said he saw there was public good in having access to justice, and that justice was not a commodity.

He took up the mantle of seeing CMCs as the problem again, saying that the government had been too cautious in dealing with them, that further legal restrictions on them were required and that he wanted the FCA to start their regulation of them as soon as possible. He did not comment on the proposed whiplash reforms as directly as Mr Costa as highlighted below.

Speaking presumably of the Legal Aid changes brought about by LASPO, an Act brought forward by his own party in coalition, he said that the Act had not been a success, and that the reform had been too crude. He was also critical of the changes on tribunal fees introduced by the Coalition Government which he now thought had been wrong.

Alberto Costa MP

Mr Costa had been a member of the JSC in the last parliament and had been the most persistent questioner of the ABI at the February evidence-taking session. He remains a practising solicitor in England and Wales and a non-practising solicitor in Scotland. He declares an income of £834 per month from working as a consultant solicitor for up to 4 hours per week for a Chancery Lane firm, as well as continuing links with the Solicitor Sole Practitioner Group.

Despite being no longer a member of the JSC and having taken up the role as Parliamentary Private Secretary to the Secretary of State for Scotland, he had both clearly accepted A2J's invite and was willing to make it clear that the opposition to the reform which he had voiced in the JSC February hearing remained current.

In February, he seemed to be arguing APIL's line on the statistics, saying that whiplash claims had come down significantly over the last few years, apparently omitting the point that claims had until the end of 2016/17 remained stable but with a significant increase over the longer term, albeit with the injuries being described in a different way without as many direct references to whiplash.

In February, he saw the main issue as being fraudulent claims which he thought should be dealt with under the existing law rather than there being a desire to change the law of tort to ban general damages, but this of course being prior to the publication of the P&CB and its proposal for a tariff.

Mr Costa did not speak in the Commons during the Second Reading of the P&CB and it might have been thought that his appointment as a PPS to the Scottish Secretary would have diverted his interests away from whiplash. It now seems not so.

At the February JSC session, Mr Costa had said that a long time ago he had acted in PI claims on both sides. Speaking at the A2J meeting this week, Mr Costa said that from his practice he could not recall any single individual with whiplash who was anything other than credible, and that in his view whiplash was a genuine injury like any other.

He repeated the view this week that whiplash claims had been decreasing significantly over recent years. Despite that he noted there had not been a reduction in motor premiums. He thought the reforms were a red herring and that car insurance costs would not fall as a result.

Access to justice issues were also clearly important to Mr Costa. We needed to be careful before limiting the rights of individuals, he thought. Raising the SCT limit risked depriving people of access to justice and would limit the rights of the genuinely injured.

England had, he said, a premier world legal system. We needed a healthy thriving legal profession.

He also criticised his party colleagues for supporting the reforms, accusing some of them of getting carried away "on a right wing rant".

Parliamentary progress

We continue to await the publication of the Civil Liability Bill to take forward whiplash reform, as well as the measure to implement the intended change to processes used to set the discount rate. We await to see to what extent government has listened to concerns raised around the wording used in the P&CB especially around how the category of affected claims is defined, and how a mixture of primary and secondary legislation sets out to deliver that.

While government commitment to whiplash reform remains, and there is most of a 2 year parliamentary term left in which to pass the legislation, at present Brexit-related measures continue to dominate.

When the Civil Liability Bill's turn comes, it can be expected to face a degree of opposition in both Houses. The government may well be able to overcome that opposition, though what remains unclear is the extent to which any further work of the JSC in picking up its enquiry may influence the views of parliamentarians, including the impact of the views of Mr Neill, its chair.

What is also unclear is whether the partisan thoughts of Mr Costa, whose approach seems to have many similarities with that of APIL on behalf of claimants and their lawyers, and which might have been expected to be more commonly seen among at least some Labour MPs and peers, is found elsewhere in his party.

The claimant approach

Claimant lawyers working in PI know that many of them are in the last chance saloon and are being encouraged to pick up the cudgels by A2J and others. A2J will presumably see as significant this week's fringe event and the Conservative views expressed at it.

They will continue to think that there is everything to play for, especially where as now the government have no majority. They will be encouraging their supporters to ratchet up pressure on MPs and JSC members. Of the JSC membership only 5 are Tories (including Mr Neill), with the 5 Labour and 1 SNP member likely to be willing to take a critical view of the reforms.

We must await news both of the Bill and the intended future involvement on the issue by the Justice Select Committee.

Contact

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

By Simon Denyer

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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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