These last 12 months have seen a steady flow of Ministry of Justice (MoJ) consultation on civil justice procedure. The cost cutting measures encapsulated within the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 are set to transform legal practice as we know it. Uncertainty around the ability to meet all the requirements for implementation continues, including around the statutory instrument implementing Civil Procedure Rules (CPR) changes scheduled to be published this month. Nevertheless the target date remains set for 1 April 2013.

Key target areas of the reforms in this update include:

  • The CPR Committee fail to agree pre-action protocols for portal extension
  • MoJ announces mesothelioma consultation
  • Whiplash consultation published by MoJ
  • Medical Reporting Organisations to launch accreditation scheme
  • The Court of Appeals rules on BTE cover

Extended portal protocols: new concern arisen

The Civil Procedure Rule Committee (CPRC) has failed to agree the pre-action protocols and rules to underpin the expanded RTA portal as anticipated. This could make it even more difficult to deliver the new system on 1 April 2013. RTA Portal Co (to be changed to Claims Portal Ltd) has also admitted that, even if the April deadline is met, it may be some months before the system is fully up and running without "workarounds".

The protocols and rules are now set to be completed on 8 February 2013. The company admitted that if there are more significant changes to the draft protocols,"there would be insufficient time to deliver a portal by April that complies".

The company also revealed that another technical issue will impact on portal access, as time constraints mean only web-based access will be available for the employers' liability and public liability area of the extended portal, with a software amendment to follow in September 2013.

Mesothelioma consultation

On 18 December the MoJ announced plans for a consultation on reform to the way in which mesothelioma cases are handled. The aim of the consultation is to ensure that in future all mesothelioma claims will be settled as quickly as possible, so that claimants can more rapidly begin to treat the disease. At present, claims often take up to two years, which is the average life expectancy of a mesothelioma sufferer after diagnosis.

The consultation will be issued in spring 2013 and will focus on current proposals which include:

  • Introducing fixed legal fees for mesothelioma claims
  • A dedicated pre-action protocol for those claims
  • An electronic portal on which the claims will be registered

The consultation will include a review of changes to the recoverability of conditional fee agreement (CFA) success fees and after the event (ATE) insurance premiums (LASPO Act s.48). The results of that review will be published in autumn 2013.

View the mesothelioma announcement on the MoJ website

Whiplash consultation issued

On 11 December the MoJ issued the long awaited consultation on reducing the number and cost of whiplash claims, which will run until 8 March 2013. The MoJ is consulting on raising the small claims limit to £5,000 and introducing independent medical panels. The two models considered for the medical panels are:

  1. An accreditation scheme - under which accredited doctors would submit a standardised form to be used as evidence in claims
  2. A "national call-off contract" - where medical organisations would bid on a national or regional contract, in turn handling all medical evidence for claims in that area

A response to the consultation will be published by the Government in spring 2013.

James Dalton, Head of Motor and Liability at the Association of British Insurers (ABI) welcomed the consultation saying, that whiplash has been the "fraud of choice" for too long. Claimant firms condemned the consultation and whilst we applaud the drive to reduce inappropriate claims, we urge for the reforms to be well considered and thoughtful:

Medical Reporting Organisations (MROs) launch accreditation scheme

On 11 December, two of the UK’s largest MROs announced they were endorsing the newly created certificate in medical reporting (CertMR). Premex Services and Premier Medical Group are responsible for providing approximately 50 per cent of all medical evidence in personal injury cases across the UK, with 3,000 NHS medical experts from both companies likely to complete the new qualification.

The qualification consists of two modules:

  1. Assessing the expert’s knowledge on CPR part 35
  2. Assessing their knowledge of medical literature on whiplash disorders

The Court of Appeal rules on BTE cover

On 12 December, the Court ruled that BTE insurers need only pay non-panel firms an "appropriate" rate. This is to ensure that policyholders are better able to choose their solicitor.

Lord Justice Longmore held:

"A court determining whether the remuneration offered by the insurance policy is so insufficient as to render the insured’s freedom of choice meaningless would have to have evidence of such insufficiency before it could avoid or strike down any provision in an insurance contract relating to the level of costs and expenses payable in respect of a solicitor’s services."