Legal blog: Everyone may get what nobody wants

Theodore Roosevelt, 26th president of the USA said.“In any moment of decision, the best thing you can do is the right thing, the next best thing you can do is the wrong thing and the worst thing you can do is nothing at all”.

As I write my final blog as Forum of Insurance Lawyers (Foil) president, I am reminded of Roosevelt’s quote as another week passes with the Ministry of Justice (MoJ) maintaining ‘radio silence’ on personal injury reform. So much hope and expectation has come to a shuddering halt as the government now seemingly struggles to get Jackson’s package of interlocking reforms across the finishing line for next April.

The list of outstanding items to finalise the package lengthens and time is increasingly compressed to the Rules Committee’s final sitting this year on 6 December. Hope fades that this government will deliver on the Jackson vision to streamline the personal injury claims process for the benefit of injured victims and for those who pay for the system.

The key component that is missing as I write this, is the detail relating to fixed costs. Not merely fixed costs within an extended portal but the detail of any fixed cost regime that will sit outside of that within the fast track. Foil has campaigned throughout this lengthy and arduous process that costs must be fixed both inside and outside of the portal if real change is to be delivered in terms of the overall cost of delivering compensation and also behaviours in the personal injury arena. Any significant divergence between those two sets of costs will also have adverse effects. Costs must be fixed and fixed in a manner that does not incentivise delay or litigation.

Until now, the government has procrastinated in delivering any detail on fixed costs in the portal and further, continues to ‘flip flop’ on fixing costs outside of that process. The same government has a stated aim of intervention to help reduce premiums for the hard-pressed consumer and for UK companies. This worthy aim will come to nought unless government moves to address fixed costs in these closing weeks of the year.

It is only fitting that in this final blog, I make reference to where this all started - Lord Justice Jackson’s final report of January 2010. That was a remarkable piece of forensic, analytical detail that in his usual succinct manner, he summed up in one simple paragraph:

“In some areas of civil litigation, costs are disproportionate and impede access to justice. I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice”.

Unfortunately, that focus has been lost on the journey and compensators now face a  20% uplift in general damages, qualified one way costs shifting and compressed timelines to investigate and admit liability. This against a backdrop of a costs regime that may incentivise claimant lawyers to exit that new portal process and litigate. This serves no one, not the inured person nor those who underwrite the cost of the system. The government will fail in its aim to reduce premiums and Jackson’s vision of a balanced and interlocking package will be delivered in a piecemeal and distressed state.

The real danger is that everybody will get what nobody wanted. A process still not fit for purpose, that still draws disproportionate costs and drives delay for injured victims. Foil urges the government to have one last concerted push at delivering Jackson’s vision for all concerned.

Finally, and again delayed and outstanding, is the pending consultation on the small claims court and medical evidence for whiplash claims. Once again, Foil continues to press the MoJ on this issue. We await sight of this long-awaited paper. Whiplash is the key issue for 2013. We will retain our focus and purpose on this issue which continues to drive frequency, severity and fraud.

I would like to close by thanking colleagues at FOIL for their tireless support over the past 12 months and all those who have trod this now well-worn path to the MoJ seeking progress and a better system to support genuinely injured victims. The hope of the Olympic summer has been replaced with a pessimism of a missed opportunity.  I can only hope that the government steps up over the coming weeks to realise the aims that Sir Rupert Jackson articulated so clearly not three years ago.

Don Clarke, president, Forum of Insurance Lawyers