Any move to push non-whiplash small personal injury claims into the new Official Injury Claim portal (OICP) should be taken with “great care”, a Civil Justice Council report has cautioned.
It has also called for a major public awareness campaign on insurance fraud.
The CJC working group, chaired by Nicola Critchley, a partner at DWF, was tasked with recommending further reforms for low-value (under £25,000) personal injury claims but, as we report on Legal Futures today, it also highlighted worries with the whiplash reforms due to come into force in April.
The group was looking at how to resolve meritorious claims more quickly and with reduced costs while also preventing unmeritorious claims.
“If there is to be any extension of the OICP system to other types of case, it must be undertaken with great care, avoiding a ‘one-size fits all’ approach,” its report said.
“This includes the setting of FRC [fixed recoverable costs], which needs to be properly considered in the light of adequate data. Where LiPs [litigants in person] are using the process, there must be clear guidelines, particularly for LiPs in how to handle ‘mixed’ claims, i.e. those for both personal injury and non-injury related damage.
“At the same time, there must be consistency within the portal system, so that, for example, there is full provision in all cases for a stage 3 type adjudication. Clear guidance must be given about the availability of ADR and when and how it should be used.
“Correspondingly, care must be taken before there is any further extension of MedCo, to ensure that it is accessible to LiPs and offers only experts who have been audited before registration and who perform to the requisite standard.”
The group recommended that more specialist medical experts should not be selected randomly if MedCo was extended to higher-value claims involving more complex injury.
It said this could only be achieved by monitoring closely how the new small claims track and OICP were operating, “so that lessons can be learned and acted upon, rather than any problem areas becoming embedded in the next phase of developments. This includes capturing the data necessary to identify and address any abuse”.
The group recommended that the next stage of OICP development should allow the transfer of data to and from the current Ministry of Justice portal, which campaigners have called for from the start.
“Although there is no intention of adopting the current stage 3 process in the OICP, if that happens in the longer term an enhanced system that automatically collates the data will be necessary so that the court proceedings pack before stage 3 is engaged is collated from information already entered in the portal.
“Further development of the OICP should include a process to assist in the provision of rehabilitation.”
The report also called for the claims portal behaviour committee to have “greater powers” and interact more with regulators “in order to stamp out unreasonable behaviours”.
It said a behavioural committee should be established to monitor the OICP to report 12 months after the new rules have been introduced.
The group urged the government to establish a “single, consistent and reliable database to facilitate the identification of the types of insurance fraud, their frequency and their sources”.
“Vast amounts” of data were being collected by numerous sources “and the group considers that there has to be an overarching body responsible for monitoring the data, publishing the same as appropriate and ensuring where possible that data sets are consistent”.
This data should also be used as the basis for a consultation on how best to combat fraudulent and unmeritorious claims in the future, along with a “coordinated campaign to educate the public as to the true nature of insurance fraud, its cost to the general population, and the criminal and civil penalties for making or supporting a fraudulent claim”.
The campaign should be government-led but with financial support from insurers, “for example through a levy based on gross premium income from certain types of policy”.
Ms Critchley said: “The drivers behind unmeritorious claims are multifactorial and there is no magic bullet to address them. This report emphasises the care needed when devising and implementing further reforms and the importance of monitoring progress and outcomes.”
The other members of the group were Brett Dixon, Jonathan Scarsbrook and Abi Jennings from the Association of Personal Injury Lawyers; Brian Dawson, a mediator and deputy district judge; District Judge and regional costs judge Richard Lumb; Shirley Denyer and Nigel Teasdale from the Forum of Insurance Lawyers (the latter is also a director of MedCo); Lee Watts, head of technical claims at Allianz representing the Association of British Insurers; and Steven Chahla, head of claims strategy at NHS Resolution.