The government has not presented the evidence that the growth in whiplash cases is linked to an increase in fraudulent and/or exaggerated claims, the Civil Justice Council (CJC) has argued.
The advisory body – which is headed by the Master of the Rolls, Lord Dyson – also warned that the government is wrong to believe that raising the small claims limit for personal injury cases will make it easier for insurers to challenge them.
In its response to the whiplash consultation, the CJC said it was concerned that “significant reform is envisaged without the government coming to an evidence-based conclusion that the growth in whiplash claims is linked to an increase in fraudulent and/or exaggerated claims.
“It would therefore support further research being carried out before what might be unnecessary, and potentially costly, reform is embarked upon. There is a sense that there is a danger of the problem being overstated, that only a small minority of claims are exaggerated or fraudulent, and the way to tackle fraud is by a robust approach by defendants to civil actions where there is evidence to support such an allegation or, in appropriate cases, through criminal prosecution.”
The CJC argued that where it is alleged a claims is exaggerated or fraudulent, irrespective of its value, it is unlikely that it will be allocated to the small claims track. “Such allegations, which often involve more than one expert report and cross-examination of multiple witnesses, can only properly be dealt with on the fast- or multi-track.”
It said it was concerned that the government’s belief that raising the small claims limit would make it more economically viable to challenge cases “is based on a misconception”.
The council also thought that £5,000 was too high given the complexity of claims that would catch, and could encourage claimants to exaggerate their claims.
While opposing an increase just for whiplash on the basis of both “principle and practicality” – because there should not be a different approach for the same type of injury depending on how it occurred – the CJC said “it is not clear what, if any, evidence there is which would support a proposal to increase the small claims threshold” for all road traffic-related personal injury claims.
The CJC supported the establishment of independent medical panels so as to remove any doubts about the independence of the doctor providing the report. This should take the form of an accreditation scheme run by the General Medical Council and funded out of the report fees, it recommended.
The CJC also questioned the timing of the proposals “given the volume of civil justice reform taking place at present, and how the climate for claims will be changing”. These seem likely to have an impact on the number of claims being brought but they need to be given time, it said.
“It may be that further changes at this point will not be sensitive to the post-April environment, and would undoubtedly add to the pressures on parties, practitioners and judges adapting to it; and secondly, and crucially, carry out a detailed evidence-based assessment of the effects of those reforms.”