The judgment of the Court of Appeal in Afzal v Ford Motor Co (27 May 1994) and the Lord Chancellor's decision to scrap any special scheme for small personal injury claims has effectively put the clock back three years in the debate over small personal injury claims.

It represents a startling U- turn on the part of the Lord Chancellor and makes many of us wonder why we have been wasting our breath on this issue.It has been said time and time again by the Association of Personal Injury Lawyers, the Law Society and many other commentators, that personal injury claims are complex and require legal assistance to settle them.

How are plaintiffs in these cases (typically factory workers, parents of injured children, pensioners with pavement trip claims) supposed to gather evidence from witnesses, resolve the legal issues of negligence or breach of statutory duty, obtain reports from doctors and other experts, plead the case, calculate damages and interest, negotiate with the defendants' claims inspectors and, if all else fails, bring the witnesses and experts to court and present their case without legal assistance?His Honour Judge Paynter Reece in his judgment in the Afzal case (Romford County Court, September 1993), said of the preparation needed for a personal injury claim: 'To expect a plaintiff factory worker to do all this work himself seems to me to be so obviously unrealistic and unreasonable as not to bear further discussion.' Quite.For over three years now the debate has raged over small personal injury claims, dressed up as part of the great reform of the civil justice system - simplify procedure and remove the worries on costs which prevent plaintiffs from bringing claims.

But plaintiffs do not have any worries about costs in these cases as they invariably win.The 1991 proposals of the county court rule committee for all personal injury claims under £1000 to be arbitrated with no cost were withdrawn by the Lord Chancellor after a storm of protest.

He said he had sympathy with those who had pointed out the difficulties of the claims and the likelihood that plaintiffs would be at a disadvantage under the proposals.

The solicitor-general, Sir Nicholas Lyell, stated 'small personal injury claims will not be automatically referred to arbitration until the Lord Chancellor is satisfied that there are sufficient safeguards to meet the needs of litigants'.In October 1993 the Lord Chancellor's Department produced a new scheme for consultation.

The complexity of the claims and need for legal assistance, at least in the early stages, were recognised.

Limited costs were to be allowed.

One of the aims of the scheme was 'to safeguard the reasonable interests of the less experienced and often weaker party'.The proposals attracted many detailed responses.

APIL and the Law Society welcomed the recognition that small personal injury claims required special treatment and legal help but suggested that all could be cured by allowing successful claimants costs on county court scale 1.We were all waiting for some reasonable outcome to the LCD paper when the Court of Appeal delivered judgment in Afzal.

Completely disagreeing with Judge Paynter Reece, they stated that there was nothing special about personal injury claims and that arbitration under CCR ord 19 was the appropriate procedure.

Plaintiffs should limit claims to £1000 if they had no expectation of higher damages, thus automatically and irrevocably depriving themselves of the right to costs.In August the Lord Chancellor announced that, in the light of the judgment, he would take no further action on the consultation paper, effectively taking us all back to July 1991.

No mention anywhere of 'safeguards to meet the needs of litigants'.Will the arbitration procedure work and are there adequate safeguards in the rules? Nothing has changed since 1991 to make the procedure usable by unrepresented claimants.

In the average small personal injury claim, which may include minor medical and dental negligence cases, plaintiffs will have to do the whole lot themselves.

Defendants will continue to be ably represented by their claims inspectors, defending claims to the hilt as they have in most cases in the past.

A few determined, literate, educated plaintiffs will be able to handle their own claims and may get a reasonable award.

The rest will be deterred from bringing a claim or will settle for less than the claim is worth.

To expect an orderly queue of factory workers, pensioners and parents outside Romford County Court waiting for their arbitrations is really absurd.What about the escape mechanism of CCR ord 19, r.4 ? Yes, you can ask the district judge to rule that the case is exceptionally complex and should be referred to trial.

First you must limit the claim to £1000 and deprive yourself of all costs to date.

Then, if you win an order for trial, costs only begin at that point.

Who in their right mind would incur unrecoverable costs of around £600 in an attempt to get a trial of a claim worth less than £1000?The ruling in Afzal - hailed by some as a victory for common sense and simplification - will have the singular effect of denying access to justice to most of those claimants it is designed to help, and rewarding the insurers with a long sought-after bonus (fewer claims, no costs).What can be done? First, we must ensure that a rise in the small claim limit, which has been long expected, does not sweep a whole new swathe of personal injury claims into the arbitration net.

But, above all, we must start again and lobby and seek to persuade the Lord Chancellor that this scheme will not work and will deny the basic right of just compensation for most injured victims with small claims.1994