Vulnerable guinea pigs
By Andrew Kay
With weeks to go before implementation of the small claims portal, major gaps still remain as Andrew Kay explains
Caveat emptor – the name of the new Ministry of Justice (MoJ) small claims portal. Not quite, and not ‘let the buyer beware’ – but rather, ‘let the consumer beware’.
This was the feeling held by many of us at the recent Motor Insurers Bureau (MIB) conference, where the portal was laid out for us for the first time. The gaps identified by conference attendees were numerous and concerning.
At the Association of British Insurers (ABI) conference the previous day, the MIB’s CEO Dominic Clayden highlighted that the portal would ask certain questions to let litigants in person (LiPs) know that the system is the right way to make a claim, ie in recognising it was a claim worth less than £5,000. However, there was no such signposting in the MIB demo.
The first mention of injuries was in one of the final few pages of the portal, where it was merely seeking to confirm the type of injuries, not to guide LiPs as to whether or not this is the right way to make their injury claim.
The new portal and the fast-track portal aren’t linked so it is vital that there is early warning signposting, so consumers don’t waste their time on a portal they shouldn’t even be using. This lack of foresight can be seen in other areas too.
For example, if an LiP starts a claim through the portal, but later decides they would prefer professional advice or help, their claim cannot then be transferred – meaning the whole process has to start again.
Surely this doesn’t mean a completely fresh start, that the liability admission and medical report obtained by the LiP must transfer over? Not according to the MIB. It advised that a new claim has to follow the entire process from start to finish and any earlier admission of liability is not binding on the compensator. Equally, the MIB is unsure about who would fund the second medical report in such circumstances.
Also, if an LiP seeks professional representation and starts a new claim, that would then mean duplicate claims in the portal. The MIB seemed not to have considered this, but at least it had a solution this time: the LiP would have to withdraw the claim they originally submitted.
Worryingly, the portal will not allow for other losses to be added once an offer has been made. So a LiP must know all losses they want to claim before they’ve even submitted a medical report. Does the MIB believe LiPs will be aware of this? There’s no suggestion the portal will sufficiently signpost any potential ‘other’ losses – so how are unrepresented LiPs going to be aware of what they might actually be entitled to claim?
Even if they do, with items such as credit hire and rehabilitation seemingly excluded from the portal, and with little direction as to how those type of losses will need to be pursued in future, the gaps in the system continue to grow.
One delegate gave an example of an LiP who has had five previous road traffic accidents and pointed out it wouldn’t be unusual for an insurer to request sight of medical records in those circumstances.
So they asked if the LiP would have to obtain full medical notes (which could potentially be several hundred pages long); and if so, who ensures only relevant records are sent. It was also asked whether, assuming the LiP finds a way to upload all these records for submission to the compensator, can the portal deal with that size of file.
After some hesitation, the MIB said this would be the LiP’s responsibility – but was unsure what limits might apply to uploading documents. Time is running out and with just eight weeks away from supposed implementation, the portal is evidently far from ready with major gaps still to be addressed.
Vulnerable claimants are being lined up as guinea pigs, left to navigate their way through a system beset with pitfalls, errors and confusion. People will trust that those in charge have created a system that will help and guide them, so how can this possibly be considered access to justice?
Andrew Kay is director of operations at First4Lawyers first4lawyers.com