A delay to the introduction of the whiplash portal was inevitable. But, says Qamar Anwar, managing director of First4Lawyers, dropping alternative dispute resolution from the new system was not
The Ministry of Justice (MoJ) did not surprise the market by announcing a five-month delay in implementing the whiplash reforms—the overwhelming response was one of relief that the worst-kept secret in the legal world was finally out—but the decision to ditch the alternative dispute resolution (ADR) element of the new claims portal did catch many unawares.
Lord Chancellor Robert Buckland said: “[N]o practicable solution which gave sufficient coverage of ADR for claims could be found.” Instead, he continued: “[W]e will ensure access to justice by developing bespoke processes to enable litigants to go to court to establish liability.” What these processes will look like is anyone’s guess, although we do know that litigants in person will still have to pay a court fee to access them.
This is awkward for the MoJ because it had previously highlighted the key role that ADR would play. In a letter last year to justice select committee chair Sir Bob Neill, MoJ spokesman Lord Keen said: “For those claims where liability is wholly denied by the defendant compensator, the claimant will have the ability to access the bespoke alternative dispute resolution process. This is being created to support the new service and is wholly funded by the insurance sector.”
“This will provide an independent view as to whether the compensator is right to wholly deny liability. The insurance sector has agreed to be bound by this process, and so if the ADR outcome is that liability should be in part accepted by the compensator, then the claimant will then have their medical report paid for by that compensator at that point.”
“If the independent review process does not find that the compensator should accept liability, then the claimant could of course exercise their right to start court proceedings.”
At the Motor Insurers’ Bureau (MIB) London seminar that took place the week after Buckland’s announcement, there was a little more detail from Richard Hutchinson, head of the whiplash reform programme at the MoJ. He explained the main problem was that, to avoid a challenge under article 6 of the European Convention on Human Rights (the right to a fair trial), this facility would have had to be made available to represented claimants