By: 1 March 2016
Last line of defence

Claimant lawyers have had enough of reform in the Personal Injury sector. This time, they’re making a renewed effort to fight back 

As any boxer will tell you, it’s the punch you don’t see that hurts the most.

So, last November, when George Osborne effectively said that the Government wanted low value soft tissue injury claims to become a thing of the past, the personal injury legal community suffered a flash knockdown.

It quickly picked itself up off the floor, however, and, importantly, reacted. Representatives from The Law Society, the Association of Personal Injury Lawyers (APIL) and the Motor Accident Solicitors Society (MASS) soon got on the phone to each other and started plotting their response. This time, they vowed, they weren’t going to sit back and let politicians play politics with the legal system without a proper fight.

Following further discussions, the three bodies agreed to work closer together in order to fight the proposed increase of the small claims limit to £5,000 and removal of general damages for whiplash injuries. As a result of their discussions, they will speak with one voice against planned reforms: pushing out unified messages, while still retaining their independence when it comes to matters such as consultation responses.

“We’re all primary stakeholders, we are well regarded and have strong legal brands – so it does make sense to work together on this,” says Deborah Evans, APIL’s chief executive.

“It’s a marathon, not a sprint. It’s going to be a long haul for us trying to influence policymakers and get the right answers.

“When it comes to legal reform, we all want the same answer and we will do much better by working together than all coming up with slightly different ideas independently, because that then confuses the whole picture overall.”

David Marshall, managing partner at Anthony Gold and the chair of the Law Society’s Civil Justice Committee, says that the groups have also agreed to closer ties given the lessons they have learnt from recent history.

“Looking at Jackson and LASPO, the collaboration between the practitioner groups then wasn’t so strong. And that didn’t lead to a very happy outcome. So we’re trying as far as we can to work together as we’re all in agreement that these reforms are not going to work.”

“This is an Access to Justice issue and it’s better for us to be working together rather than the Government being able to find too many differences between our positions. And we are pretty much at one with our views on this.”

As well as presenting a unified front, the organisations have also decided to fund joint legal action, if it becomes necessary.

Evans explains that this will entail taking joint legal advice – if necessary – and then splitting the bill three ways. The groups view the campaign as a fight to defend a fundamental access to justice matter, which will probably require some expensive help. Consequently, both the Law Society and APIL will draw on their finances, while MASS will be asking its members for a levy in order to pay for any counsel fees.

Apart from drawing on financial support, the group will also look to cast a wider net in order to canvass opinion and make sure it is delivering the right message on behalf of the PI sector.

“There are a number of pressure groups and they represent different bodies, like ATE insurers and CMCs, and we appreciate that other groups will want their voices heard too, ” says Evans.

“So we’re setting up a wider working party where we can share our thoughts. The Law Society has agreed to host the meetings.”

Evans hopes that the inclusion of the wider PI community will allow medical reporting agencies and the like to put their message across through the group’s media campaigning as well. Even though there are bound to be nuances in how the varying groups will approach certain points of potential reform, Evans says that it is better to try and filter these through one over-arching message.

Fighting the ABI press machine

The importance of the claimant community speaking with one voice has been highlighted over the past few years by the well-oiled insurance press machine, driven chiefly by the Association of British Insurers (ABI).

Sue Brown, the Chair of MASS, says that the challenge of getting lawyers’ voices heard has become hard given the strength of the insurance lobby.

“There’s no doubt about it and they have the ear of both the Government and the tabloid press and even some of the broadsheet press,” she says.

“Those two measures that Osborne announced were top of the ABI wish list”.

“Whiplash claimants has suffered from shockingly bad PR over the last few years. It’s very distressing when you have acted for clients who have been injured and to have them tarred with the same brush as fraudsters staging accidents such as crash for cash.”

A chance of success?

When it comes to predicting whether or not they can match that slick machine and force the Government to step down, Evans says the proposal to scrap general damages for minor soft tissue injuries is probably the one that they have most chance of success with.

“Everyone is in agreement on being against the removal of general damages,” she says. “It is viewed as a fundamental right and it is inherently wrong, in our view.”

Marshall agrees. He says that it would set a dangerous precedent if Parliament were to start legislating on the right to any form of compensation for a bodily injury.

“That’s always been something which the legislators have always been happy to leave to the courts to determine and we’re not really convinced that any good case has been made to change that,” he says.

He also points out that there are some significant issues around the government being able to implement a change in general damages, including the actual definition of whiplash. “We’re pretty confident on that one,” he says.

On the small claims limit, Evans says that nothing has changed since the last review when the Government rejected the idea.

“Last time the Government said that it would like to put the limit up but it didn’t think the time was appropriate for a number of reasons,” she says.

“It was concerned about the number of CMCs flooding the market in a similar way in which they’ve moved into PPI claims. And they were concerned about under settlement of claims and litigants-in-person dealing directly with insurers.”

“And none of these points have been addressed.”

“So any safeguards that they might have wanted to put in place have not been put in place at all. So the same reasons why it wouldn’t work last time still apply today.”

Brown is not as willing to predict what will happen, but she is confident that the three bodies can at least make their case better heard this time.

“Obviously we need to see what the content of the consultation is and whether it is covering all the issues. We’ll have our input and see what comes out of the other end.”

“This time we can give it our best shot and I’m optimistic that we will be delivering a message that will be heard and noticed.”

“What I don’t know is how it will be received, but that’s not something that we can control.”