Smith: Guide falls between two stools
The 64-page users guide for litigants in person navigating the new Official Injury Claim portal has been strongly criticised by a leading academic for being “hopelessly complicated”.
Meanwhile, the rules underpinning the new small claims process for road traffic accident claims have already been amended, with the regime set to come into force in less than three weeks.
The users guide was described as “legal treacle” when published last month, and Professor Roger Smith wrote this week that while litigants may be reassured by the statement that it has been reviewed by “senior independent counsel to ensure it is both comprehensive and accurate”, there was “no claim that the document has been revised by experts in plain English”.
“Wisely,” he continued. “The first two paragraphs begin with conditional clauses ‘if…’. The rest may well meet the requirements of senior independent counsel but it isn’t easily readable by a member of the public.”
The guide fell “hopelessly” between two stools, he argued. “It purports to help a self-represented claimant to make their way through a portal established by the insurance industry. But the underlying law is really complicated.
“The guide is neither advanced enough for a professional reader nor clear enough for non-professionals.”
He pointed out that government guidelines advocate that written content should meet the minimum reading age of nine years to ensure it is easily understood, and authors should consider an adult with additional learning needs or an elderly relative with dementia trying to understand the information.
Professor Smith said: “It would be impenetrable to someone of that level of ability.”
As an example, the definition of a protected party was both “hard to follow and technically incorrect”, he found.
It did not answer “the sort of practically foreseeable question that might arise for an adviser. For example, does an inability to use the internet for whatever reason constitute a lack of capacity to conduct proceedings? Who can tell? The guide is little help”.
The one-time director of JUSTICE is now a visiting professor at London South Bank University and has for several years been researching the use of technology to advance access to justice around the world.
He said a “64 page booklet stuck not the net with a few hyperlinks is not really good enough anymore”. The internet required “a more interrogative and interactive approach”.
Professor Smith concluded: “Clearly, technology can handle complexity. Computers will fly you to the moon. But that may not be enough if the process is one which users have also to understand.
“The treatment of road accident claims raises a lot of difficult issues for government, the legal profession, courts and insurers.
“The complexity and deficiencies of the insurers’ 64 page explanatory booklet suggests that the current package is hopelessly complicated and likely to prove unstable.”
Separately, the Master of the Rolls, Sir Geoffrey Vos, has approved amendments to the pre-action protocol for personal injury claims below the small claims limit in road traffic accidents.
There are six pages of changes to the protocol, which forms the basis of how the new regime will work.
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