Hutchinson: Still a challenging and ambitious implementation date
Three months should be enough time for personal injury law firms and defendant insurers to be ready for the whiplash reforms, the government official leading the work said yesterday.
Richard Hutchinson, head of the whiplash reform programme at the Ministry of Justice (MoJ), also suggested that the exemption for minors and protected parties from the new portal was temporary.
He was speaking at an event on the reforms in London organised by the Motor Insurers Bureau (MIB), which is building the new portal on behalf of the MoJ, in the wake of the Lord Chancellor’s announcement last week that implementation was being put back from 6 April to 1 August.
The final protocol and practice direction governing the system are still to be signed off by the Civil Procedure Rule Committee, and Mr Hutchinson indicated that this may yet take some weeks.
“We’re hoping to give you three months between finalisation [of the rules] and go-live, and from conversations we’ve had with the ABI and other stakeholders, that was an appropriate amount of time [to get ready],” he said.
He acknowledged that it was “still a challenging and ambitious implementation date but it’s one that ministers want to make sure that we achieve”.
MIB chief executive Dominic Clayden suggested firms in practice had a bit longer – the portal will only apply to accidents that take place on or after 1 August, meaning the initial volume of cases is likely to be low. He said firms could perhaps at first handle cases manually while they sorted out their systems.
Mr Hutchinson said he would “reflect” on a call from one claimant lawyer in the audience to publish the draft rules now.
The MIB has had them for several months and Mr Clayden was clear that, were the rule committee to make “huge changes”, it may struggle to have the technology ready in time.
The portal has been built in 17 three-week ‘sprints’, and he said the MIB has the ability to do two more before August.
“Provided we get the actual rules by the beginning of May and [they require] two sprints or less , we’ll be ready for 1 August.”
One of the key policy announcements made last week was that claims by minors and protected parties would remain on the fast-track. Mr Hutchinson said this would ensure they had legal representation and could obtain medical evidence through MedCo at no cost to themselves.
But he stressed that the new compensation tariff would still apply to such claims. “It’s got to apply equitably and fairly across the board,” he insisted.
Hinting that this would not be a permanent exemption, he added: “We are going to look and see how that operates over the course of time, and then consider whether or not, and how, we can adjust the pre-action protocol in the service to actually wrap up these claimants into it.”
The other big announcement last week was that alternative dispute resolution (ADR) was not going to be included in the new portal to resolve liability and any other disputes for litigants in person (LiPs), despite ministers having pledged that it would be.
The civil servant indicated that the main problem was that, to avoid a challenge under article 6 of the European Convention on Human Rights (right to a fair trial), this facility would have had to be made available to represented claimants as well.
“What became clear… was that we can’t design and deliver a service that has got the ability and scope to provide access to ADR for all the parties who may wish to go into it, when you look at the number of cases that may well come into the service.”
Instead, LiPs will have to go to the small claims court for a decision on liability – for which they will have to pay an as-yet undecided court fee – and then, if successful, return to the portal.
“What we’re developing is a really simple, intelligent, user-centred designed form and set of processes and procedures, supported by functionality in the service, that will enable the LiP to understand what’s required of them by way of information at particular points in time, to enable them to work through the new court processes.”
He acknowledged concerns that the small claims court – where the amount of time it takes to get to trial is rising and is currently 38 weeks – would struggle with the extra workload.
He said the MoJ was discussing this with the courts service, and would monitor the impact closely. But he said the ministry still expected that, overall, the reforms would lead to a net reduction in sitting days in the civil justice system.
Mr Hutchinson indicated that the Financial Conduct Authority would look to act on insurers who were found – through the detailed management information the portal would generate – to be denying liability more often than average.
The official also revealed that the MoJ was currently consulting with the Lord Chief Justice on the tariff – as required by the Civil Liability Act 2018 – although he hinted it was unlikely to be significantly different from the previously published tariff.
A decision has still to be made on how credit hire litigation, which is outside the scope of the portal, will be handled.
Mr Clayden said that 220 organisations have so far signed up to the new portal – 191 professional users and 29 of the estimated 100 compensators in the market.
Garry Luxford, the MIB’s head of customer operations, stressed to delegates that a process of continuous improvement would be put in place after launch, including monitoring the portal’s net promoter score, more focus groups, and turning the current stakeholder advisory group into a customer council that would meet every two months.
Speaking from the floor, Sue Brown, chair of the audit committee of MedCo, said it would have been ready for April but the extra time was useful when it came to auditing medical reporting organisations (MROs) and direct medical experts (DMEs) that wanted to service LiPs.
She said the “depth” of audits would depend on MROs’ initial understanding of the qualifying criteria – which are currently out for consultation – as judged by an initial telephone call. If MedCo was happy with this, they could be approved without a visit.
All DMEs will be seen face to face; a consultation last year suggested that around half of those on the MedCo system – around 350 – were interested in working with LiPs.
Ms Brown said she was confident that there would be “national coverage” for medical reports by 1 August, even if not all providers have been approved by then. They will be audited on a ‘first come, first served’ basis.
There is nothing equitable or fair about damages being assessed by politicians according to the nature of the accident rather than the injury suffered..