MedCo: reviewing the situation

On 16 July 2015 the Ministry of Justice (MoJ) announced a formal review of the operational framework of MedCo. The review, which the MoJ clearly says “is starting earlier than planned”, comes just over 100 days after the mandatory arrangements for obtaining medico-legal reports in whiplash claims via MedCo took effect in early April. The Minister in charge, Lord Faulks QC, stated that “a number of new business practices have developed in this sector with the potential to undermine both the Government’s policy objectives and public confidence in MedCo.” MoJ has requested submissions by 4 September.

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Further whiplash & Medco reforms

policy definition

With effect from 6 April 2015, medical reports in in soft tissue injury claims brought under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents must be obtained via the Medco portal. This requirement takes effect via changes to the Protocol and the CPR & PD provisions on fixed recoverable costs.

Claimant solicitors will be required to undertake ‘previous claims’ checks on potential claimants and to confirm to the defendant that this has been done. There is also to be accreditation requirement, from 1 January 2016, for medico-legal experts to help improve the quality of medical evidence and drive up standards.


About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

MedCo goes ‘live’ for motor claims

steering wheel

MedCo goes ‘live’ for motor claims (in England & Wales) notified on or after 6 April 2015

MedCo operates a mandatory portal for the commissioning of medical reports in low value soft tissue injury claims arising from road traffic accidents (i.e. whiplash cases). Its home page states that:

Any Claim Notification Form sent on or after the 6th April 2015 involving a soft tissue injury claim, must have a fixed cost Medical Report commissioned from a medical expert or MRO sourced via MedCo.

These claims have already been defined in the Civil Procedure Rules, which also provides for fixed fees for these reports. The primary aim in introducing MedCo is to improve the quality and independence of medical reports in these claims. There is also a none-too-covert aim of tackling fraud in respect of this sort of claim

Provision has also been made to address financial links between reporting experts/agencies such as Medical Reporting Organisations (or MROs) and those commissioning the reports. Other changes were made so as to incentivise the use of these fixed fee reports and to deal properly with payment of disbursements within the rules on staged and fixed recoverable costs.

From today [6 April], reports must be commissioned via the MedCo portal, which will generate a choice of seven agencies or experts which may be commissioned to provide the fixed fee report. Claimant solicitors and motor insurers must be registered as users of MedCo (as must CMCs handling relevant claims) to do this. There is no fee and a good deal of the market already has done so.

Equally, MROs and direct-reporting experts (i.e. those not associated with a MRO) must also have registered in order to be in place to receive reporting commissions from 6 April.

Direct reporting experts and MROs will have to pay annual registration fees to MedCo of £150 and £15,000 respectively. The latter is increased to £75,000 if the MRO has a national presence and (among other requirements) capacity to deliver over 40,000 reports annually.

For the calendar year 2014, Claims Portal Co recorded over 830,000 CNFs in RTA cases. Even if as many as one in fifty were duplicates, the total would still be over 800,000. Consequently a higher tier MRO delivering 40,000 reports annually would be servicing only 5% of the potential market. Interestingly, the £180 fixed fee for a report would require the higher tier MRO to turnover more than 400 reports just to meet its registration fee. That is more or less 1% of the capacity required for this tier of MRO.

The MedCo user agreement requires that the user “shall not request, receive or pay referral fees in contravention of Legal Aid, Sentencing and Punishment of Offenders Act 2012.” That Act does not ban referral fees where no personal injury is involved. Its user agreement also refers expressly to paragraph 88 of the CJC’s 2014 guidance on using experts, which is set out below

Payment of experts’ fees contingent upon the nature of the expert evidence or upon the outcome of the case is strongly discouraged. In ex parte Factortame (no8) [2008] QB 381 at [73], the court said ‘ we consider that it will be a rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement.

Accreditation of expects is envisaged as further step in the refinement of MedCo. The currently-stated aim is that medical experts must, from 1 January 2016, be accredited by MedCo Registration Solutions in order to provide the fixed fee reports in soft tissue injury RTA claims.

So, what next? It will certainly be worth watching the progress of activity toward this aim. There is a general election between now and the proposed delivery date for accreditation.


About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).