2013 is a year of big change for personal injury, but change is not always progress. My association's fears that rushed reforms could be a step backwards for justice were finally recognised before Christmas when the secretary of state for Justice announced that he will reconsider the April 2013 deadline for extension of the streamlined road traffic accident claims process.
APIL had warned the government that to establish extension of the RTA claims process (and the electronic portal through which it operates) to employers' liability claims, public liability claims, and claims valued up to £25,000 in such a short time would cause chaos. We know from experience when the original RTA portal was created in 2010 that not nearly enough time had been allowed to do the job properly. When our warnings were ignored, we began judicial review pre-action proceedings in conjunction with MASS (Motor Accident Solicitors Society) and a climb down on the implementation date has finally ensued.
While this is good news, time gained from a delay in this instance is only of use if something is done with it. APIL is not anti-change and would welcome new efficiencies, but action needed to be taken to ensure the systems which are ultimately put in place are robust and efficient for all concerned. We urge the government to be cautious and realistic in setting a new date for implementation. The time from a delay should be used to address outstanding issues in the current RTA portal such as the high exit rates, and the falling level of damages, as identified by Professor Fenn when he reported to the government on how the existing portal is functioning. An extension to other types of claim needs proper evidence-based decision making on process and price, consultation, sufficient time for robust construction off the technology, and thorough testing. At the end of the day, any new systems put in place should be a step forward, not backwards.
Further confusion lies with proposals for outrageously low fixed fees for claimant representatives to earn for portal work. They proposals have been seemingly plucked from the sky without due regard for costing the process, particularly as the process is yet to be finalised. Setting unprofitable and inappropriate fees is a back door attack on access to justice. It simply will not be affordable under such fee structures for many injured people to get proper, independent legal advice.
And plans to increase the small claims court limit for personal injury, which are directly at odds with those to extend the RTA portal, are still being considered. This two-pronged attack on the injured person appears to show the real agenda - the intention to make low-value claims simply go away by forcing injured people to stand alone.
All this rumbles on as firms await the reforms from the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) due in April. With 12 weeks to go, we still await final detail on qualified one-way cost shifting, part 36 rules; new conditional fee agreements, and damage based agreements will need to be drafted assuming the rules area ever agreed. In short, law firms already have plenty to deal with in April 2013 and time is of the essence.
Meanwhile, APIL is working collaboratively with MASS on future legal action concerning extension of the RTA portal. The organisations are reflecting on next steps but have no intention of backing off now. We are hopeful that the government will work with us to find a way for injured people to continue to have access to the justice they need.