Government's response must be worth the wait

It is quite astonishing that it was almost a year ago, at the Association of Personal Injury Lawyers' (APIL) annual conference in Newport, that the lord chancellor launched the government's long-awaited consultation paper, Case Track Limits and the Claims Process.

Speculation about what the paper may or may not contain had been rife for months. Finally, there stood the lord chancellor in front of more than 300 APIL members, waving a copy in his hand and outlining the government's proposals to an audience literally on the edge of its seat.

We are now one year on and APIL's conference is here again. Much has happened over the past 12 months in the world of personal injury. Yet this consultation paper, which is rumoured to have had more than 300 responses, is still the subject of speculation.

While there has been public criticism from some quarters about the delay in the government's announcement of its intentions, I want to reiterate why it is crucial that we have a claims process that serves the needs of injured people.

Unique position

APIL members are in a unique position to understand the devastating impact an act of negligence can have on an individual's life. This means we are uniquely placed to fully understand what should and should not be done, to help injured people.

Many myths continue to surround personal injury claims, yet the reality is that only about a third of people who have a right to claim compensation for their injuries actually do so. Figures from the government's Compensation Recovery Unit continue to show a general downward trend in the number of claims being made.

APIL would be among the first to acknowledge that improvements to the current system can be made, but any improvements must not be to the

detriment of injured people. Improvements must focus, first and foremost, on protecting the most vulnerable party: the injured individual. Claimants would undoubtedly benefit from a quicker process in which liability is admitted early, insurers make offers of rehabilitation early and in which there is a strict timetable in place to determine amounts of compensation. But different types of case need to be treated in different ways, and the system proposed by the government is suitable only for road traffic accidents in which liability is obvious, where only one medical report is needed and which have a value of less than £2,500. Other kinds of cases, such as employers' liability, public liability and disease claims, have complicating factors which make them unsuitable for this regime.

When the government responds to this consultation, what we hope will be unveiled is a system which has injured individuals at its heart. This will be only possible if several key features are included.

APIL campaigned long and hard for the retention of the small claims limit for personal injury cases at £1,000. It was welcome news when the lord chancellor announced this was one of the government's recommendations contained in its consultation paper. It meant the government had, in effect, recognised that the small claims court is not an appropriate forum for personal injury cases. The financial arrangements of the small claims court mean many injured people are not able to afford to pay for legal advice and therefore have to face the defendants who injured them (who invariably can afford legal advice)

without proper representation. Personal injury cases can be complex and it is unrealistic to assume that a lay person can be confident they understand the issues involved.

APIL firmly believes that the current fast-track limit should be retained at its current level of £15,000, not raised to £25,000, as proposed. Doing so would mean that many complex cases would fall into a process which is suitable only for lower-value claims. The fast-track system impedes a claimant's ability to prove their case in court because it places restrictions on the length of the hearing and the amount of evidence which can be put to the court. Such a move would have the greatest impact on pensioners and other people with low incomes because, even though they may have significant injuries, their loss of future earnings will be low, so the lower 'value' of such cases will force them into the fast-track procedure. By contrast, a high earner with the same injuries would be more likely to fall into the multi-track system, which affords greater freedom to pursue the case thoroughly.

Tariffs are not the answer

Damages should continue to be determined by the courts, rather than by an inflexible tariff system. Personal injury claims are not like other claims. Those injured through negligence are individuals with different lifestyles, varying ways of coping with injury and different rates of recovery. Damages paid to those injured negligently are individually tailored and so require careful assessment. I am adamant in my belief that it is impossible for an impersonal, computerised 'assessment tool' to be developed to deal with injured individuals. We welcome the statement that it is not the government's intention to develop such an assessment tool at this stage. We also welcome the government's consultation on the law on damages, published last year, and

we hope the government will take a lead in implementing Law Commission recommendations to increase damages for pain, suffering and loss of amenity.

Injured people must be made aware that they can receive independent legal advice throughout the course of a claim. The recommendation for injured people to take legal advice should be included on the claim form and on every other communication made to an unrepresented claimant. APIL has conducted extensive research into the way unrepresented people are treated and has found evidence of routine attempts by defendants or their insurers to settle claims for less than their proper value, until an independent legal representative becomes involved.

We feel very strongly that the government should introduce a statutory requirement to offer injured people rehabilitation on admission of liability. In its consultation proposals, the government said an offer of rehabilitation should be made, but APIL believes rehabilitation is a crucial part of the claims process, and benefits both claimants and defendants. Making it statutory would ensure that the injured person is at the heart of the process, as it would be aiding recovery, which in turn is a step towards getting that person's life back on track.

Introducing fully binding admissions of liability would remove any uncertainty and mean admissions could be relied upon. Right now, admissions can, of course, be withdrawn, which causes further distress for the injured individual. A binding admission means a claimant has no need to further consider investigating liability or causation of injury. Most importantly, it means a claimant will not be vulnerable to the whim of the insurer.

Applications to withdraw admissions on fast-track cases waste court resources and inevitably increase costs. Unless fully binding admissions of liability are introduced, claimants can never be told with any certainty that they will be compensated. They will never be able to plan for the future with any degree of certainty and will endure prolonged anxiety until trial or settlement.

APIL would also like to see the government introduce an obligation for insurers to make immediate interim payments when liability is admitted, for undisputed items of special damage such as damages to personal belongings. It is unfair for them to be left out of pocket for a moment longer than they have to be. It is crucial that claimants gain a sense of progress with their cases, and early payments would also instil a sense of confidence in the new system.

Time limits must be enforced

New time limits proposed by the government should be strictly enforced if they are to work, as the success of the whole system depends on compliance from all parties involved in claims. We are fully supportive of the notion that defendants should be notified early about claims, so that they are able to investigate early while recollections are fresh, as it will hopefully lead to earlier admissions of liability. Once the time limit is up, though, claimants should be allowed to take steps to investigate the claim. If the insurer does not admit liability within the time limit, the case should come out of the new streamlined process and the claimant should be allowed to instruct a solicitor to proceed with the case.

As I prepare to take on the role of APIL president, I am well aware that the next 12 months are likely to focus heavily on the personal injury claims process. My hope is that when the government does eventually respond, the time it has taken reflecting on the proposals of stakeholders will have been used to focus on how the new system can better serve the needs of those injured through negligence.