The Justice Committee were not shy about raising criticisms during the progression of the Civil Liability Act, and they have maintained this position as the April 2020 implementation date for the whiplash reforms moves closer.

Confirmation from Lord Keen that minor and protected parties will be exempted from the road traffic small claims increase – and by extension exempted from using the litigants portal – was welcomed by the chair of the Justice Committee, Bob Neill MP.

However, in a recent letter to Lord Keen, the Committee has raised queries regarding:

  • Whether use of the portal will be mandatory
  • Assisted support for the 'digitally disadvantaged'
  • Funding of medical reports
  • Litigant support to deal with medical reports

The recent MIB whiplash reforms seminar has provided some further clarity on these and other issues.

Mandatory use of the portal

Recent debates on the Online Courts Bill suggested a paper alternative will be available but the MedCo consultation suggested otherwise.

The recent seminar confirmed that litigants will be able to bring a claim via the portal or using non-digital means, although no information has been provided as to what this provision will look like. A free telephone support line is intended to be in use to assist all users but further particulars are not yet available.

Medical reports

As we have highlighted, it has yet to be clarified how the MedCo system will be integrated with the new portal, but it was confirmed the Government's response to the MedCo consultation (which is expected imminently) will address this.

On completion of the report, the litigant will be able to seek correction of factual inaccuracies, but will be unable to reject the expert's opinion. Additional reports can only be obtained where the original prognosis period has expired or where the initial expert recommends a further report.

Lord Keen's letter of 29 May 2019 referred to consideration of "a link between court fee exemption and medical report fees" but no further clarification on any possible expansion of the fee remission scheme for medical reports has been forthcoming. Medical reports will be paid for by the insurer in the event of a full or partial admission, but for those claimants where liability is denied – and the independent liability evaluation (discussed below) does not find in their favour – there is an expectation of payment by the litigant. If the claim is successful, then the cost would be recoverable as a disbursement.

Other minor injuries

The Judicial College are considering whether guidelines are needed for quantifying ‘other minor injuries’; i.e. the secondary non-whiplash aspect of RTA injuries.

It is to be hoped new guidelines are calculated in a proportionate manner to the whiplash tariffs. The small claims track changes will apply to non-whiplash injury claims sustained in a road traffic accident if valued at under £5,000.

If revised guidance is not provided, there remains the risk that claimants will seek to claim for whiplash and these additional injuries as they are considered under the Judicial College Guidelines, and potentially subject to greater entitlement than the new whiplash tariffs.

Independent liability evaluation

A proposed ADR service will be available for litigants-in-person on issues of liability or quantum where the litigant has concerns about an insurer's position on liability or quantum. The outcome of this ADR would be binding on insurers only.

There are critical discussions ongoing regarding whether or not the ADR service will be available to represented litigants. Allowing represented parties to access the service poses questions as to capacity of the service. In addition, there are questions as to how represented and unrepresented litigants will respond to a finding against them on liability within the ADR scheme.

It is understood that ADR providers are in the process of being selected, although none have yet been chosen.

The Civil Procedure Rules Committee (CPRC) has also recently discussed the need for a statutory foundation to underpin this new ADR process. There is no reference to such a requirement within the Civil Liability Act.

Pre-action protocol

Beyond underpinning the ADR scheme, a formal Pre-Action Protocol for the rules of this portal has yet to be created. The Ministry Justice and the CPRC are collaborating on this issue.

Hire and vehicle damage

If a claimant has already paid for hire and repair costs themselves (and hold receipts), then these claims can also be handled within the portal – on the basis that these claims do not take the overall value of the claim beyond £10,000. This will also be available for loss of earnings claims and other expenses, such as excess, with documentary evidence able to be uploaded to the portal.

Credit hire and rehabilitation will not yet be handed within the portal, although this may change in future. Any settlements made within the portal will be without prejudice to outstanding heads of loss. However, should a claim exit the portal and proceed to court proceedings, it is expected that all claims will need to be included in the single action to avoid issues of res judicata. The MoJ has advised these further heads of loss may be added to the portal in due course.

Connectivity between portals

Currently, the focus is on ensuring the litigant portal is fit for purpose before dealing with the potential for connectivity between this and the higher value portals.

What next?

April 2020 remains the stated date for implementation, and the MIB have reiterated that demonstrations of the current iteration of the portal development will be made available online during the summer.