MPs debate access to justice and ‘whiplash’ – 11 January 2017

Debates in Westminster Hall take place away from the main Commons chamber and generally serve to raise awareness of the subject matter. Access to justice, debated this Wednesday, is an important topic, covering current MoJ “whiplash reforms” (small claims limit for personal injuries and general damages for minor soft tissue injuries) as well as employment tribunal fees, legal aid and court closures.

Having attended many Westminster Hall debates (supporting MoD Ministers) I was not surprised that this week’s debate secured by Rob Marris MP (one of three MPs attending who were formerly partners at Thompsons Solicitors) to discuss access to justice was not particularly well-attended. However, Ministerial responses to these debates often provide good indications of Government thinking and therefore, having set the scene, the body of this post concentrates on what was said by MoJ Minister Sir Oliver Heald QC MP.

Rob Marris MP (Lab, Wolverhampton) opened the debate – held just five days after the deadline for responses to the MoJ’s consultation paper “Reforming the Soft Tissue Injury (Whiplash) Claims Process” – by making clear that access to justice is a pillar of the welfare state. This was met with a nod of approval and prompted MPs to declare that a democracy relies on a number of citizens’ rights, including access to justice. If there is not the money for access to justice, we do not have the rule of law. Pressure on the Minister!

A dispute ensued about the accuracy of estimates and statistics both from the Government and Association of British Insurers and demands were made that the insurance industry passes on savings from the proposed ‘whiplash’ reforms in the form of reduced premiums. Inevitably, there was criticism of the short consultation period here (17 November to 6 January), followed by discussion about the Government’s proposals and the likely the winners and losers.

In his remarks by way of response, the Minister made clear that the whiplash changes would result in a saving of £1 billion, which accounts for the estimated £40 cut in premiums for every motorist.

He congratulated Chris Philip MP (Con, Croydon South) for an important contribution that explained “the industrial nature of whiplash claims” and “the dubious practices that go with it.” [He added that any Scottish MPs attending the debate might find it hard to understand the claims culture he described because Scotland does not have it.]

He described the situation as reaching the point at which it is a massive problem. To drive the point home he added that “There have been huge improvements in car safety, so how can it be that 770,000 road traffic accident claims were made in 2015-16, compared with only 460,000 in 2005-06, with around 90% of the claims in 2015-16 being whiplash-related? That figure is too high and the Government must take action to tackle this issue and protect consumers.”

He could not avoid the small claims limit for personal injuries and stressed that with the consultation this should be considered this very seriously. He questioned whether the £1,000 limit, set more than 25 years ago, was appropriate today and noted that the small claims limit for other types of case has been increased on several occasions and is currently set at £10,000. He posed this rhetorical question about the small claims limit: “Are we to sacrifice [these reforms] simply to uphold a threshold that has been in place for so many years, since 1991, and in the interests of solicitors?”

The Minister confirmed the Government is committed to ensuring that the justice system works for everyone and described some of the actions being taken. Reform was not just about legal aid but also about simplifying procedures and changing the way that the legal system works. He referred to the joint plan announced by The Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals that seeks to renew and to transform our justice system. He reconfirmed the Government’s investment of £1 billion (over this Parliament) to reform and digitise the courts.

He stressed that reform will deliver swifter justice and a less stressful experience for those involved. In doing so it is the aim to remove cases out of court that do not need to be there, whether by using online procedures or through more alternative dispute resolution.

In a strongly-worded passage he said the full force of judge and courtroom would only be used in those cases that require it and unnecessary hearings, redundant paper forms and duplication in the system will be stripped away. The guiding principle [as ever] is to have a system that is proportionate and accessible, and is there for the vulnerable, victims of crime, members of the public, legal professionals, witnesses and litigants. He described this as “a system that is a statement of our values as a country and leads the world.”

The Minister confirmed the importance of the legal aid system, but highlighted huge financial pressures that forced the Government to introduce reform (via the LASPO Act 2012) which concentrated on providing legal aid in the most important areas: where an individual’s liberty or home is at stake, where children might be taken into care, or where there is domestic violence. He did confirm that although those reforms were substantial, it would be right to follow through the intention to conduct a proper review of the LASPO Act by April 2018 at the latest.

The Minister emphasised that litigants in person get help and support and that, since 2015, £3.5 million had been provided to the litigants in person support strategy. In reality of course much of this support is provided by the advice and voluntary sectors and in the form of pro bono help.

As ever with Westminster Hall debates, when the Chair calls time the Minister is forced to stop in mid-sentence, in this instance when he was clarifying that there the Government was not proposing a ban on taking legal advice in small claims, although “clearly people would need to look at the economics of that … and possibly reaching an agreement [about] how their case is funded.”

The next development as regards the whiplash reforms should be the publication by 7 April 2017 of the MoJ’s analysis of all responses filed by last week’s deadline. Naturally, we shall cover that in a future update. In the meantime, the full text of Oliver Heald’s remarks is available on Hansard here.

Jef Mitchell, Consultant, BLM

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