The Government confirmed in June 2012 that the target date of April 2013 for extension of the road traffic accident (RTA) Portal process to RTA, employers' liability and public liability claims up to £25,000, stands firm. A close inspection of the detail required for an effective extension is likely, therefore, to follow in the coming months. Looking at others' responses to the Portal consultation is a useful starting point to gauge possible direction, and in particular, those provided by the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society (MASS).
An overriding theme which we have been advancing from the outset of this current era of civil reform, is that the whole raft of reforms - as largely outlined in the first place by Lord Justice Jackson - will not function correctly, effectively and fairly unless they are interlocking and balanced one against the other.
Looking at the internal mechanics of the RTA Portal, and the prospect of vertical and horizontal extension, much the same is true. The drivers within the process to progress claims – which includes the ability to critique, validate and settle claims, together with the checks and balances in relation to negotiation and expert evidence are all found wanting. They are still unbalanced.
As we come to contemplate vertical and horizontal extension of the scheme, APIL may perhaps come to regret its 'running interference' with the judicial push to fix fast track litigation costs over so many years. It is an open question whether, if those costs had been fixed a few years ago, there would have been such an overwhelming move now to reform low value motor claims?
Whereas APIL’s concern that insurers are out to 'de-lawyer' low value motor claims through the RTA Portal is largely illogical, and whereas Professor Fenn’s research seems to indicate only a surprisingly minimal reduction in claimant costs recovery after introduction of the Portal, there is a very real need to further reform and adjust the Portal process before we even address the issues surrounding extension of the scheme.
Looking at vertical extension of the RTA Portal, APIL’s concerns about freedoms in instructing experts, obtaining medical records and time allowance in Stage 2 for injury claims worth over £10,000 may be valid. However, they also appear one sided. For instance, the need for proper medical evidence should include the arguable need, say, for both parties to put questions to experts or to consider the inclusion of genuine joint experts.
APIL mention medical records. It is currently disappointing for the insurance industry to read strikingly similar medical reports on Portal screens where it would seem no proper consideration of medical records or history has been given by the expert. Whilst the insurer may be prepared to swallow its discomfort when moving to offer settlement on a one year whiplash claim to ensure an economic outcome, moving to settlement on the basis of a brief and simplistic medical report (often prepared without sight of GP records) suggesting a three year exacerbation injury, is frustrating.
Therefore, the logic of allowing both sides to properly review the medical evidence, including putting questions to experts, must grow stronger with more valuable injury claims. It is surely an unassailable logic for injury claims worth more than £10,000?
MASS have suggested that penalties for failure to comply with the RTA Protocol process should usually be limited to costs penalties, rather than cases being removed from the process. Such a suggestion is commendable. Of course, the concern from the defendant’ perspective would be to ensure that costs penalties are appropriate and proportionate and encourage claims to progress, rather than be utilised as a tactical ploy to build costs.
Currently, many claimant firms hide behind the electronic process itself in terms of settlement attempts, and often refuse to enter into meaningful negotiations (by telephone or by email). In other words, the current process can stand in the way of negotiated settlement at Stage 2. If meaningful dialogue was positively encouraged, and the Portal offered a truly shared web document, I suspect many more claims would settle at Stage 2. This is all the more critical when you turn to consider vertical extension of the scheme.
APIL raise anecdotes. Anecdotally, claims handlers at numerous insurers have noticed a marked increase in the number of passenger claims in the RTA Portal. Does this mean that more people are now travelling as passengers in motor vehicles? Are passengers now more prone to injury than in 2009? Again, such observations support the call for the RTA Protocol and process to be robust enough to discourage unmeritorious claims.
In our response to the Government proposal, we expounded ideas to achieve more balance and fairness within the Portal process. We have advanced many of the views and ideas of our insurer clients.
Without the aforementioned adjustments, checks and balances, a key issue will no longer be access to justice and rather the problem may become access to justice. No one wants that.