Access to justice under threat says leading Yorkshire lawyer

The Government’s proposed radical reforms of the UK’s compensation culture could deny justice to the deserving, argues leading North Yorkshire lawyer Mike Willis

Is the compensation culture truly compensating – or compromising – our culture? Is it so ethically, economically, or socially ruinous that its momentum must be dammed, or will the measures now being canvassed by Government lead to the loss of too many babies with the bath water?

At the end of the first week of the New Year on January 6, before most businesses have had time to collect themselves after the holiday, the Ministry of Justice’s consultation, Reforming the Soft Tissue Injury (“whiplash”) Claims Process, will close. Its purported range of enquiry is broad, but its real vision and likely purpose is less so.

There is a heaviness of desire in the current political climate to curb the runaway excesses of the undeserving, exploitative or fat-cat-enriching injury claims industries. This desire hangs like pre-monsoon humidity over the legal profession and a wide variety of attendant enterprises. These businesses are purportedly professional, but are really just out to make some bucks.

For supporters of reform, the moral indignation is dressed in more censorious clothes: statistics reflecting the cost to the insurance industry and resulting inflation of policy premiums; the profits of claims management companies; and the economic and social consequences for young drivers.

But for every statistic put up by proposers, there are plenty of others available to opponents and the real likely consequences of a reduction of small injury claims, in strictly economic terms, are hard to predict and may in fact not be significant.

A familiar pattern typifies many injury cases: A minor shunt in a car park or city street; addresses are exchanged after cursory examination of respective vehicles reveals no obvious damage. But within days, the motor insurer of at least one of them is presented with a claim by the other, followed in due course by engineers’ reports describing damage and repair costs beyond the value of the vehicle; weeks of hire charges for an alternative vehicle pending repair; and medical reports using well trammelled phrases to describe a range of physical and psychological injuries, not just to the driver but also to their front seat passenger and maybe one, two or more others – who may or may not in fact have been present – in the back.

The challenges and costs of disproving these claims are such that insurers all too often prefer to settle them, putting money into the undeserving pockets of parasitical claimants, claims management companies, lawyers, engineers and doctors.   Oh ? and so also the virtuous – or subversive if you prefer – circle supercharges the insurance industry itself, whose brokers, underwriters, loss adjusters and claims assessors all make a better living from the economic growth.

Minor injury disputes of this kind, generating easy money for claimants and often lucrative returns for the adjunct service businesses, inevitably provoke dismay and sometimes disgust among defendants; and real anger if they are uninsured, or an overblown insured dispute leads directly to a substantial premium hike on renewal of their cover.

It can be a fruitful source of work for professional risks lawyers like me, to defend insurance brokers or lawyers facing claims and complaints from aggrieved clients on the wrong end of an inflated action.

The Law Society, under its current energetic CEO Catherine Dixon and this year’s President Robert Bourns, who between them seem genuinely to be trying to call the tunes, and at a volume, which solicitors have wanted to hear from their Union for a generation, is focused primarily on opposing two of the most prominent proposals:

• Stopping or radically reducing compensation payments for minor soft tissue injuries, including whiplash, arising from road traffic accidents; and
• Raising the value of ‘small claims’ civil court actions, for which winning claimants can’t recover their legal costs from losing defendants, from £1000 to £5,000, thereby cutting claimants’ access to legal representation unless they can pay for it from their own pockets.

Solicitors have been encouraged to write to their MPs and participate actively in responses to the Consultation. Undeserving or exaggerated claims constitute only a minority of all small injury claims and most are genuine entitlements to compensatory damages for real hurts, albeit not of particularly high value. True, the symptoms of many whiplash injuries are no worse than an inconveniently stiff neck; but many can and do become a long term chronic discomfort or physical weakness. Minor scarring from a wound to a leg or arm is unlikely to impact many lifestyles; but on a person’s face it can be life-changing.

The much more profound consequence of a radical constriction of minor injury claims, once the many painful redundancies and coerced career changes have worked through, will be the shift of balance between claimants, for whom professional representation or advice becomes unobtainable or unaffordable, and defendants, who will continue to be represented by experienced professionals, courtesy of their insurers.

Access to justice will become replaced by access to a process, which may produce legal results, but there will be no justice at – or in – its heart; and once the coherent and authentic systems of justice are taken away, ad hoc or self-help measures will replace them.

Mike Willis is the managing director of law firm F Mike Willis, of Thormanby, near Thirsk, North Yorkshire