Legal systems and processes are under almost constant review as competing interests are picked up or put to the side by different governments. In recent years a number of reforms in the UK have been framed as addressing the “compensation culture” or making the court process simpler and more efficient. However, the reality is that some of these measures risk eroding access to justice for those with genuine injuries, rather than making the process simpler.
The Civil Liability Bill, which is more commonly referred to as the Whiplash Bill, is currently in the final stages of amendment. This Bill has caused a great deal of concern in England and Wales where its provisions will have most effect. Its headline provision is to limit the levels of compensation which can be awarded in cases of soft tissue injury falling under its definition of whiplash. An obvious concern which follows is that this will severely restrict the awards which can be made to those who have suffered a genuine injury as a result of someone else’s negligence. The tariffs which are likely to be fixed are lower than the average awards made at present in similar cases.
Alongside the Whiplash Bill are proposals to raise the limit for small claims to £2,000 in the case of personal injury actions and to £5,000 in the case of actions resulting from RTAs. The Government intends to introduce these changes by secondary legislation at the same time as the Civil Liability Bill. The current limit for personal injury actions in England and Wales is £1,000 and increasing this will cause more claims to fall exclusively to the jurisdiction of the small claims process. Several trade unions have expressed concern that this will catch a number of claims relating to workplace accidents which involve not insignificant injuries. For instance, it is possible that certain lower value claims in respect of hand or finger injuries, or even certain fractures, would fall between £1,000 and £2,000, forcing them into the small claims procedure as a result of the reforms.
In Scotland, the small claims process was replaced with simple procedure from November 2016. This procedure has to be used for claims with a value of up to £5,000. As with the changes proposed in England and Wales, the introduction of simple procedure pushed a number of claims in which legal representation would previously have been standard into the apparently party litigant friendly and simplified court process.
In theory, the simpler procedure involved in the small claims process, and its equivalent in Scotland, should make it easier for those who have been injured to access the courts. The procedures are designed to use less legal jargon and to be followed by those without legal training. However, while the process may be simpler, it will normally be new to the injured person, whereas the insurers will have access to far more resources and expertise, including legal representation. This creates the potential for a very real inequality of arms.
While an individual can obtain legal representation in small claims procedure or in simple procedure, the costs can be prohibitive to many. In Scotland, legal aid is not available to fund a claim under simple procedure. Expenses can be recovered from the defender in the event of success to meet legal costs, but these are capped. Under the small claims procedure in England and Wales the position is even more restrictive as the only legal cost which can be recovered is a very limited sum for a solicitor completing the form required to commence the action.
When it comes to defending claims raised against them under the procedures designed for lower value claims, insurers are far more able to obtain legal representation and are unlikely to be prohibited by the cost of doing so. Their knowledge of the court process and of litigation generally is also far greater giving them a degree of advantage.
It is hard to disagree with reforms which aim to reduce fraudulent claims and simplify the legal process for lay persons. The picture is however very different when the reality of taking on an insurer under these reforms is considered. The Civil Liability Bill and the proposed changes to the small claims limits in England and Wales reflect a worrying trend in the wider UK towards claims systems which strengthen the position of the insurer and damage the rights of the injured. This is may not be the primary intent but it is certainly a concern for injured workers, victims of road traffic accidents and many others wishing to exercise their right to access justice and compensation.
Blog by Amy Haughton, Solicitor