Litigants in person, whiplash and McKenzie friends: where’s the plan?

Some time ago I was part of a committee reporting to what was then the Lord Chancellor’s Department – now the Ministry of Justice – on unregulated claims assessors. The BBC reported at the time it was set up that “An investigation is being carried out into allegations that consumers wanting to pursue legal action are being over-charged by people who are not qualified lawyers. The suggestion is that the growing numbers of consumers seeking compensation after accidents or employment disputes are being ripped off…

It seems that very similar concerns are now held by the senior judiciary, which last month published the response to its own consultation on the approach to so-called McKenzie friends – lay individuals who seek to assist parties who litigate without lawyers and who may charge for doing that.

The response, issued by the Lord Chief Justice’s office, notes that the senior judiciary “remain deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers.”

The language and the underlying concerns of this response and the previous BBC report are clearly very similar. What is less reassuring, perhaps, is that the problem still exists some twenty years after that report was published by the BBC.

Shifting the formal regulation of claims management activity from the MoJ to the FCA next month (via the Financial Guidance and Claims Act 2018) will not directly address the use of McKenzie friends, but should at least go some way to tackling poor behaviours in the claims management sector.

What is less than clear is whether an industry of McKenzie friends might develop when the small claims limit for motor injury cases is raised to £5,000, which is due next April (2020) as part of the wider whiplash reforms. That is widely expected to lead to an increase in litigants-in-person (LiPs), who might be expected to look to paid McKenzie friends if there is no other obvious support or guidance for them in the new claims process.

The judicial response emphasises, rightly, that “It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.”

We understand that the government, in the form of the MoJ, is taking forward work to develop support and guidance for LiPs as part of its programme of whiplash reforms, including an online platform or portal.

If these reforms are delivered on time then we are little more than a year away from significant change and a real spike in the numbers of LiPs. Somewhat worryingly, there is little – if any – visibility of what the MoJ is planning and how it might operate.

And while it is of course understood that some work on the detail will need to take place in private, it would nevertheless be hugely beneficial to a wide range of stakeholders across the motor claims sector if the MoJ released as soon as possible even an outline of the necessary activity and an indicative timetable for its delivery.

Unfortunately, however, there seems to have been nothing concrete since last July, when Lord Keen, the Minister responsible for these reforms, wrote to the Justice Select Committee that “the Government is now proposing for the platform to be ready for large-scale testing by October 2019 with the view to implementing the whiplash measures, including the rise in the small claims limit to £5,000, fully in April 2020.”

Eight months have elapsed since that was said. Despite Lord Keen’s colleague Lucy Fraser QC MP offering the following parliamentary answer on 1 March:

“The new IT Portal to support all road traffic accident related personal injury claims which are valued under £5,000 is being designed and built in partnership with the Motor Insurance [sic] Bureau along with a group of expert stakeholders, including claimant and defendant interests. Aside from MoJ staff costs there is no additional cost to the public purse. There will be an assisted digital route so that users who are digitally disenfranchised will also be able to progress their claims. The new Portal will be tested from October 2019, and will go live in April 2020.”

there remains little over six months before the proposed “large-scale testing” of an entirely new claims platform is due to begin. Surely it is not too much to expect some clearer direction and rather more detailed communication from the Ministry in the coming weeks?


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Alistair Kinley, director of policy and government affairs
Alistair.kinley@blmlaw.com

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