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CJC calls for tighter controls on links between claimant solicitors and experts in whiplash cases


Whiplash: claimants should have choice of experts

The Civil Justice Council (CJC) has called for controls on links between claimant solicitors and medical reporting organisations (MROs) and experts to be extended beyond situations where there is a financial connection.

In a largely positive response to the Ministry of Justice’s latest consultation on whiplash reform [2], the CJC also said claimants should be given a small choice of medical expert, rather than have one allocated to them through the proposed MedCo portal.

The CJC said it continued to endorse the government’s “overall objective of developing a more streamlined procedure for soft tissue injury claims – and one which is both transparent and proportionate”.

The government plans to sever the financial links between MROs, solicitors and claims management companies, which the CJC agreed is of “fundamental importance” to the reforms. The response said the CJC had a particular interest in how this will be defined and policed.

“Any breaches should be a matter for the professional regulators, such as the Solicitors Regulation Authority,” it emphasised.

It said the efforts to address this should not be limited to financial links. “It would be equally undesirable for a selected MRO to be run by a member of the solicitor’s family, for example, even if no financial benefit ensued.”

The CJC added: “This is a complicated field in which the nature of the different possible business relationships – both direct and indirect – are varied and complex with links often not only with the commissioning party or intermediary but also with the subsequent treatment providers, eg a physiotherapy company or CBT provider.”

The council’s view was that the claimant should have a choice between directly instructing an individual expert and using an MRO, and that this choice should be one of the criteria selected by the claimant or their lawyer when using the new system.

“As the government will be aware, many firms simply would not consider it viable to pursue a claim if it involved the extensive liaison and administration made necessary by the exchange of medical records and most now operate by using medical agencies.”

The CJC recommended that claimants should be given a “small random selection of say three experts with sufficient background information to enable a choice to be made, rather than one individual”.

Also in its response, the council said that if a claimant solicitor fails to conduct the proposed ‘previous claims’ data search on their client, the defendant should be able to decline the claim notification form and require the claimant to resubmit the claim as though never presented, “rather than simply allowing the claim to drop out of the portal with the consequent risk of higher costs”.