We report today that The Law Society has responded to the Government’s consultation on banning compensation claims for whiplash injuries and requiring all personal injury claims worth less than £5000 to be dealt with in the small claims track where there is no real possibility of obtaining the payment of realistic costs from the losing opponent thus denying access to justice for thousands of injured claimants.
Their response deals mainly with four headline proposals set out in the consultation and their likely consequences.
A) Removal of damages for ‘minor’ whiplash claims or set a fixed rate of compensation of £400 [ or £425 if the claim includes psychological injury ]
The Law Society writes that it “wholly opposes any attempt to remove the common law right to compensation for injuries caused by the negligence of others. The level of compensation must reflect the severity of the injury that the individual claimant has suffered. Rates of compensation have been established through the common law over a number of years and are now enshrined in the Judicial College Guidelines (JCG). For these reasons we do not agree with setting a fixed rate of compensation particularly at the proposed low rates of £400, or £425 where the claim includes a psychological injury.”
The Association of Personal Injury Lawyers has pointed out that a commuter can claim £30 of compensation when a train is 30 minutes late yet £25 is offered for what can be a debilitating psychological injury.
B) Reduce injury compensation for whiplash injuries of a longer duration through an introduction of set tariffs
The Law Society does not support the tariff principle for the reasons stated above and in any event, they consider the proposed tariff rates, which are in the main substantially lower the than the normal compensation rates, to be unacceptably low.
We add that one only has to look at the mean and dispirited tariffs in the Criminal Injuries Compensation Scheme which were introduced in 1996 and have become meaner and meaner over the years since.
C) Raise the Small Claims Track (SCT) limit to at least £5000 for the injury element
The Law Society writes “We oppose the proposal to increase the SCT limit to at least £5000 for all personal injury (PI) claims. This would prevent claimants from recovering legal costs which means that many would not be able to obtain legal representation for claims where invariably defendants are insured (motor and employer’s liability are compulsory insurances) and thus well resourced. The insurance companies employ experienced, specialist claims handlers to deal with pre-issue work and will also have easy access to legal representation. There will, therefore, be no equality of arms with the Claimant who may never have had to deal with a legal procedure before. We are also concerned that the SCT is not designed to deal with the more complex issues of law that can arise in PI cases, especially when liability is disputed. If Claimants are not in fact simply deterred from exercising their legal rights as a consequence of this, the Court will not have the resources to deal with an influx of hundreds of thousands of cases presently handled every year in the Portal which get nowhere near a court.”