Even though it has not even published the Civil Liability Bill, the government is planning to introduce its reforms to road traffic accident (RTA) claims in April 2019. I, like many practitioners, question whether it is achievable.
To introduce a no-costs rule for RTA claims under £5,000 by making them small claims and cut general damages for injury by replacing the common law with a tariff of reduced payments will be an unprecedented move. Never before has a government tried to reduce general damages.
Not only will new court rules have to be devised, but also the claims portal will need to be completely redesigned to allow it to be operated by litigants in person. Quite how all this can be achieved in just over 12 months is difficult to comprehend.
The reforms will put significant impediments in the way of claimants seeking justice for smaller claims. This is the intention. It says much about the government’s approach that it has named the date without, at the very least, waiting to read the Justice Select Committee’s forthcoming report on the reforms.
Insurers must be rubbing their hands in glee. Their spin, it would seem, has yet again won over ministers. But they should not celebrate yet.
First there is the small matter of getting this bill, when it is eventually published, through Parliament. The government will do well to find time for it when Brexit takes precedence over everything, while the precarious mathematics of its majority in the House of Commons means it is avoiding contentious legislation like this.
It could push the rise in the small claims limit through alone without legislation (the Civil Procedure Rule Committee can do it), but whichever way it turns, the Ministry of Justice has to overcome the obstacle of last year’s Supreme Court judgment in R (Unison) v Lord Chancellor, which declared employment tribunal fees unlawful because they impeded access to justice. These reforms will similarly put significant impediments in the way of claimants seeking justice against powerful insurers. It would not be possible to devise a more unequal contest.
In the Unison judgment, Lord Reed stressed the constitutional importance of the courts, the role of civil justice and the need for unimpeded access to the courts by the people.
He said: ’The courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced … In order for the courts to perform that role, people must in principle have unimpeded access to them … without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory.’
With the no cost rule effectively excluding legal representation for claimants (not for defendants who are invariably insured), the rise in the small claims limit is unashamedly designed to make it harder to bring a claim. It is apparently to combat so-called whiplash fraud, but not only is the extent of fraud fiercely disputed – the insurers prefer anecdote to their own statistics on this one – but figures from the Department for Work and Pensions Compensation Recovery Unit show that whiplash claims fell 41% between 2010/11 and 2015/16.
The reality is that most RTA claims will be deterred, just as unlawful tribunal fees deterred most employment claims.
All past and future reforms of civil justice should now be put to the Unison test. Doing so would see most of the LASPO reforms fail, along with the planned rise in the small claims limit and arguably the next phase of fixed costs if they adversely affect claimants with limited means to the benefit of defendant insurers. The massive court fees for issuing proceedings are also ripe for challenge.
The Supreme Court has set the standard. It is now for the profession to speak with a strong voice in defence of civil justice.
Patrick Allen is a past president of APIL and senior partner of London law firm, Hodge Jones & Allen