We want to bring your attention to government proposals which will if implemented directly affect your right to justice.
The small claims limit is currently £1,000. A claim below that level does not permit recovery of legal costs, and so a solicitor would not be able to represent a person with an injury worth any less. Injuries falling below £1,000 might include very minor scarring, minor cuts abrasions and other trauma, whiplash injuries lasting no more than a few weeks etc. Such injuries do not cause any significant or prolonged symptoms and will impact the victim only minimally.
The government released a “consultation” on 17th November 2016 which proposes a raft of reforms which we will comment on below.
You can find the announcement here:-
https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/
And the consultation paper here:-
https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/supporting_documents/reformingsofttissueinjuryclaimsprocess.pdf
One of the primary goals of the reforms, according to the Ministry of Justice, the government department responsible for law, is to address fraudulent whiplash claims and the high cost of motor insurance. They say that if their reforms are implemented every motorist in the UK will save £40 per annum on their car insurance. If one ignores the fact that there is no history of insurers passing on savings to consumers (has your motor insurance premium reduced year on year since the last raft of reforms in 2013? -thought not) on the face of it that sounds attractive. Banish fraud and save £40. Surely a win / win situation. Only it’s not. Because what you won’t hear in the scant press coverage, and what the government does not want you to know, is that these proposals will if implemented remove access to justice for every citizen of the UK in an unprecedented way.
It is proposed that the small claims limit be increased five-fold, to £5,000. In other words, if you have an injury worth £4,999, and on top of that £5,000 in lost earnings, you will NOT be able to find a solicitor to act for you because there will be no mechanism for the responsible party to pay for that representation. Despite the reforms supposedly being to address whiplash and car accidents, these changes will in fact cover every accident whether as a driver, passenger, pedestrian, an accident at work or falling over a hazard in public. To give you an insight into just how significant this is, consider these examples;
A nurse at work (although it could easily have been the refuse collector or cleaner etc) is pricked by a needle which had been put into a regular bin rather than a sharps bin by a colleague. It takes months for the nurse to find out from blood tests if she might have contracted hepatitis, HIV, CMV, EBV or any other of a host of possible infections. She suffers with stress and anxiety and is unable to work for several months, receiving just SSP. She falls behind with her rent payments and is evicted from her home as a result. Her blood tests eventually prove negative, but she has endured months of what anyone would consider significant upheaval.
A factory worker falls over in their local supermarket because the floor having been cleaned was left wet and with no warning signs out. They suffer a minimally displaced fracture and soft tissue injury to their wrist. They are in a plaster cast for some 5 weeks, and continue to suffer some degree of symptoms for more than a year. During the acute phase, they can’t drive and rely on family or friends to take them to medical appointments and do their shopping and even do their shirt up and put their socks and shoes on. They remain off work for over a month, and then return on light duties for a further 3 months, suffering loss of overtime payments.
An apprentice in a fabrication factory suffers a traumatic amputation to the end of his little finger when it is sliced off due to a circular saw which was faulty. It was quite painful. The injury eventually heals but he is left with a stump at the last joint of the finger and the tip remains sensitive. His employers sacked him but he finds another job after 6 months.
You might not unreasonably ask what cases such as the above have to do with reducing the cost of motor insurance. The answer of course, is nothing at all. However, all of the above examples would be captured by the government’s reforms. All would be classed as “small claims”. The government think these are trifling injuries for which you do not need a solicitor. £5,000 or £10,000 may well be a trifling amount to the government or an insurance company, but it is not to the average person.
You would be left to battle the insurance companies yourself. Liability would invariably be denied, and you would have to prove your case. You would have to know the applicable law. And then fight an insurer who will be instructing solicitors or using experienced claims handlers. Would you be able to take your case to trial and argue it before a judge? Will you be happy to pay for the costs of medical reports, court fees and other expenses yourself? Expenses that your solicitor would before the reforms have paid for you on a no win no fee agreement?
The reality is that well over 75% of personal injury cases are currently valued at £5,000 or less. These reforms therefore will do away with more than 75% of personal injury claims. In exchange, every motorist in the UK will (supposedly) get £40 off their car insurance next year. A Black Friday sale of the rights of 64 million people for less than the cost of a tank of fuel.
The proposals do not stop there however. The Ministry of Justice have stated that “the level of compensation awarded to claimants is out of all proportion to the level of pain and suffering actually experienced by most people following a low speed RTA.” Currently, they say that a whiplash claim leading to whiplash symptoms lasting 6 months will attract an award of about £1,800. Is an average of £9.86 per day of suffering especially generous? You might think not. However, what the government proposes is scarcely believable. They propose to reduce this figure to a fixed sum of £400. Or £2.19 per day of suffering. For those who also suffer psychological symptoms (perhaps from being unable to work and losing their home) the sum increases by the princely sum of £25.00, or an entire 13.6 pence per day. Incredibly, we are not making this up. It is all there in the consultation document linked above. A consultation we would add that is open only until the 6th January 2017, thereby giving very little time for any interested parties to respond in detail. Interested parties should include every citizen of the UK, but no doubt you’ve not had a letter from your MP about these proposals or seen anything of it. The Government wish to pass these changes quickly and quietly, eroding your rights to justice without you knowing anything about it. If you don’t know about it, you can’t object to it.
The stated aim of the government is to tackle fraudulent whiplash cases. This is a sentiment with which we agree, although there are far fewer of such cases than the insurance industry would have you believe. Effectively banning or capping genuine claims is not the solution. Where there are people there will be fraud. It is human nature. The solution to shoplifting is not to ban shops, just as the solution to dodgy MP expenses claims is not to ban MP’s.
What is clear to us, indeed the entire profession involved in helping those who have suffered injury through no fault of their own, is that these reforms have nothing to do with insurance fraud. The only winners from these reforms will be the insurance industry who, even after the last raft of reforms can afford to pay their CEO’s multi million pound salaries and bonuses.
We think the public have a right to know about these reforms. Indeed, they must do so. They affect everyone. The very fabric of decent society is under attack. Is a delayed flight really worth more than a bodily injury? Should we have a society in which there is no accountability for causing injury to others? We think not, but the weight of public opinion is the only thing that will cause the government to take notice of the wish of the electorate.
We therefore implore you to forward this post to everyone you know. Post it on social media, twitter, facebook. Join a discussion that the public have a right to know about. And please, please contact your MP directly to voice concern.
You can find details of your MP here by simply entering your postcode;-
http://www.parliament.uk/mps-lords-and-offices/mps/
You will there find an email address for your MP. You can also send an email directly to Liz Truss MP who is in charge of the Ministry of Justice here:-
https://contact-moj.dsd.io/
You can either forward this post and ask for an explanation and express concern that your rights are being eroded, compose your own, or use the wording below. But please do something. Time is short, and the consultation is no less than the most wholesale attack on your right of access to justice that you have ever faced. Do not let the government pass these reforms under the radar.
Please also sign this petition which will be considered for debate in parliament on reaching 100,000 signatures;-
https://petition.parliament.uk/petitions/173099
Suggested wording:-
Dear MP,
My attention has been bought to a Consultation paper released by the Ministry of Justice on 17th November 2016 and entitled “Reforming the Soft Tissue Injury (“whiplash”) Claims Process”. The consultation appears to have implications far wider than merely whiplash claims, and will it appears not only severely restrict or eliminate altogether my rights to effectively claim redress in the event I suffer injury due to the negligence of another, but does so on the premise that these reforms arise due to the need to tackle fraudulent whiplash claims. The solution to tackling fraudulent claims is not to eliminate the genuine ones. I understand it has been suggested that every motorist might have their premiums reduced by £40 if the reforms are introduced, although oddly, the government has stated that this reduction will not be enforced by them. Why have I not been asked whether I am prepared to compromise my rights to claim for injury and loss, and if so, whether I am prepared to sell these rights for £40. For the avoidance of doubt, I am not and I oppose the recommendations within the consultation in the strongest possible terms.
Daniel Menell
Bespoke Law
