Who needs to prove fraud when you can simply deem claims unnecessary?
There was a theory doing the rounds that the appearance of a justice minister at the Association of Personal Injury Lawyers conference might be a signal for good news.
Lord Faulks, the thinking went, would not dare to run the gauntlet of angry personal injury lawyers without an olive branch to dangle.
As it was, the minister had nothing to offer but a reiteration that the reforms so feared by so many PI practitioners will happen next year. The only glimpses of hope were a lack of any solid date in 2017 (it had previously been assumed change would come in April) and that he didn’t commit to a figure for the small claims limit increase.
But there was something altogether more notable mentioned almost in passing during the frosty Q and As: the notion of ‘unnecessary’ claims.
Previously the rhetoric around PI - and in particular whiplash - has been around the need to stamp out fraud. Throw PI lawyers in alongside the cold-callers and shameless claims management companies and convince the public you’re leading a campaign against the cash-for-crash cartel. Easy.
But this new wording changes things significantly. Targeting fraudulent claims limited ministers to just a fraction of cases. ‘Unnecessary’ opens the floodgates and potentially grants the government licence to sweep away a massive tranche of claims.
Should a billionaire be able to make a personal injury claim when they don’t need the money?
This is at the core of the ban on general damages for soft-tissue injuries. Quite how to define this is unclear - AXA’s David Williams called it a mission impossible - but the principle is clear that unless you’re injured to the extent you need rehabilitation, repair work or time off work, you can’t make a claim.
So how do you define unnecessary? If my train home is delayed, I might be able to claim, say, £25 back. It’s probably enough for a round of drinks in central London. The claim itself, in the grand scheme of things, is probably unnecessary, but not making it will leave me with a grievance and the train operator won’t be induced to improve its service.
Should a billionaire be able to make a personal injury claim when they don’t need the money? Is it more ‘necessary’ for a person living in poverty to make a claim?
Lord Faulks himself didn’t really have a definition for what unnecessary means. But in a way, that doesn’t matter. The notion of removing the right to compensation is out there. If the public can be persuaded that’s a price worth paying for a cheaper insurance bill, you can bet this will be just the start.
Once damages for any injury are deemed to be unnecessary, something fundamental has changed. Simply targeting fraud clearly wasn’t profitable enough for the insurance lobby – now they’re coming after the genuinely injured too.
John Hyde is Gazette deputy news editor