Whiplash, small claims & medical reporting – new consultation

The day before the Easter weekend the Ministry of Justice published a brief consultation paper on medical reporting options under the whiplash reform programme, including the increase in the small claims limit.

The central proposal is to expand the MedCo scheme to cover obtaining initial medical reports in all motor injury small claims, whether or not the claimant is legally represented. The short period for responses – to 17 May 2019 only – might indicate some renewed momentum within the MoJ given that April 2020 appears to remain its preferred date for implementing the whiplash programme and building the necessary IT platform.

Part 1 of the Civil Liability Act 2018 sets the framework for the whiplash reforms, providing powers to set a tariff of general damages for whiplash injury and making it a regulatory offence to conclude such claims without medical evidence (effectively, a ban on ‘pre-medical’ offers). The other principal element of the government’s reform programme is to amend the CPR to increase the small claims limit for any motor injury claim – not just whiplash cases – to £5,000. Given that claims under this new limit will not be subject to legal costs recovery, the government is working with stakeholders to design and build a new IT platform to cater for unrepresented claimants (MIB group is leading the development of the IT platform).

The new consultation proposes to extend the existing MedCo scheme to cover all initial medical reports in any motor small injury case. It is probably fair and realistic to infer from this that the decision to do so has already been taken in principle and is simply not going to be reversed.

Flowing from this, the consultation raises related questions such as: whether additional categories of clinicians should be brought within the extended MedCo scheme, how the scheme should be adapted for use by unrepresented claimants and whether the fixed charge for reports should remain at £180. Unusually, perhaps, there is nothing specific on how this – the £180 fee – would be funded by an unrepresented claimant, other than the statement that: “Costs for obtaining this evidence, would also likely need to be funded up front by the claimant, albeit this would likely be reimbursed by the compensator as part of the final settlement.”

The Law Society Gazette reported publication of the consultation under the headline ‘MoJ seeks help to build lawyerless PI claims system’. In fact, the consultation’s estimate of 400,000 motor injury small claims subject to the new IT platform (and therefore to the proposed extension of the MedCo scheme) suggests that some 250,000 would have legal representation, just under 200,000 of which would be provided by BTE legal expenses insurance. It does, however, recognise that around 150,000 claimants would likely be without representation, although it makes no reference at all to the potentially worrying prospect that unregulated ‘McKenzie friends’ could seek to profit from targeting those cases.

As to next steps, the consultation paper indicates that a summary of responses should be published by July 2019. It is highly likely that the responses will feed into the ongoing design and build of the new IT platform, as was outlined in this blog from the end of March.


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Written by Alistair Kinley, director of policy and government affairs at BLM
alistair.kinley@blmlaw.com

 

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