New personal injury small claims limit would restrict claimant's rights

Earlier this month the government made a surprise U-turn to consult once again on increasing the small claims limit in personal injury cases. Less than three months after it announced that it did not propose to increase the limit in personal injury cases the government ?has now stated it believed the limit should be increased.

The government published its response to its first consultation on the issue, Solving Disputes in the County Court, in February following extensive input from stakeholders (see Solicitors Journal 156/7, 21 February 2012). This consultation, while keeping the personal injury limit the same, substantially increased the smalls claims remit in non injury cases. In addition, it proposed the extension of the much criticised online portal used in road traffic accident cases with the intention to develop something similar and extend this fixed-cost 'tick box litigation' to the whole of the fast track.

The timing of this announcement has left many claimants wondering about the politics behind such a change coming so soon after the government's previous announcement that it would remain the same. In considering the negotiations between the MoJ and claimant and defendant groups ahead of the introduction of fixed costs and the new claims process for road traffic accident cases, which went live in April 2010, it is well acknowledged that the threat of raising the smalls claims limit was used to get the parties talking and to agree on figures taking into account the fee-earning time that would likely be needed to be spent on such cases.

Whiplash summit fallout

This announcement on 2 May 2012 came after the Whitehall 'whiplash summit' on the cost of car insurance. Justice minister Jonathan Djangoly said he was in favour of raising the limit, stating that it would then be 'easier for insurers to defend spurious or exaggerated claims by ending the situation whereby it is easier and cheaper to settle claims than it is to fight them'.

The government also said it would consider appointing a panel of independent medical professionals for personal injury cases to examine whether injury occurred as alleged. Such a suggestion may sound sensible. However, in practice part 35 deals with experts and their duties, and, since the introduction of the CPR in 1999, the 'hired gun' type experts have largely been made redundant, with experts owing a duty to the court, the ability to ask formal questions of the experts and for joint statements to be made between respective experts. The fact that each expert has a duty to the court and not to the instructing party appears to have been overlooked.

The government and insurer bodies spoke as one voice in seeking to end or severely limit the claimant's right to redress in any meaningful fashion and certainly for any case within the fast-track limits. The arguments of conflict of interest are repeatedly put about the justice minister, given his personal financial interests in the insurance industry. Following an article in The Guardian in October 2011, Mr Djanogly made a declaration of interests, including investments in a 'blind trust' and no breach of the ministerial code was found. It nevertheless remains staggering how by simply putting money into a blind trust there cannot be seen to be a conflict of interest while pushing through such ?a set of reforms solely to save insurers billions of pounds.

The cost of car insurance appears to be the justification although the profits of the insurers do not seem to be questioned and the mass advertising they are able to spend is testament to the money to be made in ?this area.

United force

A leaked email from the Association of British Insurers a fortnight ago revealed that the sector considered lobbying for two possible fee levels '“ £150 or £350 '“ for cases up to £25,000 in value, as opposed to the fee currently set at £1,200 for cases up to £10,000. The impression this conveys is that insurers and government are united over the issue and that the insurers are '“ to use the government's words '“ 'pushing against an open door'.

One factor that seems to be a given is to reduce the cost of car insurance although It appears the compensation culture rhetoric continues instead of asking the right questions

The public needs to hear more about the facts before they are robbed of fair redress for their injuries and have justice replaced with a token system headed by a meerkat ?or an opera singer.