23 October 2013Print This Post

The answer to last week’s question? Yes

Let's be generous about the MoJ decision

Posted by Neil Rose, Editor, Litigation Futures

It’s nice to get things right sometimes. In this column last week, under the headline 'Is the government backtracking on whiplash reform?', I suggested that the tide had turned against a rise in the small claims limit for whiplash claims following the report of the transport select committee. Seven days later the Ministry of Justice (MoJ) has been good enough to confirm that this was indeed the case and that the limit will not go up.

That it remains under review and could yet happen perhaps means that the idea isn’t quite in the long grass, but it’s certainly in the tufty stuff and will be pretty hard to find – this side of the election at least, I would think.

You wouldn’t necessarily know it though. The MoJ sent out an embargoed press release yesterday that studiously failed to mention anything about the small claims limit, preferring to trumpet instead the new independent medical panels that will supposedly stamp out “whiplash cheats”. It was only when asked directly that the MoJ coughed up the information.

Writing this before today’s papers are published, I therefore expect that many of them will have missed the change of heart entirely. The detail of the consultation response was not released until today, and journalists have already moved onto the next story.

It is all too easy for me and other journalists to cast as a U-turn any decision by the government not to pursue proposals it had seemed set on (we saw this recently with legal aid). But let’s be less cynical for a moment and instead say that the process of consultation worked. The government was convinced by the responses it received that this was a reform too far for a market that has already seen huge change this year.

Perhaps it also understood that the evidence behind the call for a change in the limit was anecdotal at best – the Association of British Insurers (ABI) was simply unable to nail the scale of fraud. The figures that did exist in no way justified such a radical response. And that individuals having to go up against represented insurers in the small claims court was not very fair.

Nonetheless, attacking the so-called compensation culture scores easy political points and the MoJ could have gone ahead with raising the limit without much of an outcry outside of the legal profession. There was no political capital in changing its mind; rather it would be attacked for doing a U-turn and not being as tough as their rhetoric suggests. So claimant lawyers find themselves in the unaccustomed position of congratulating justice secretary Chris Grayling for listening. That’s what consultations are for; it’s just nobody expected it.

The ABI, meanwhile, will be wondering why its winning streak has suddenly come to an end.

So we’ll even let Mr Grayling get away with claiming full credit for the fall in insurance premiums this year, when there must surely be other factors at play as well.

Claimant lawyers will just be mightily relieved. Leaving last night’s Law Society Excellence Awards (as ever, a very good event), I bumped into a very well-known PI lawyer and shared the news with him. He couldn’t have been happier. “So we’re just facing a [expletive deleted] storm, not a [same expletive deleted again] tsunami,” he grinned.

Yes, claimant lawyers have won this battle, but perhaps the war was already won by defendants. Still, you take what you can and one less punch to the head is always going to be welcome.

And feel free to tweet me pictures of your firm’s FD doing cartwheels in the office.