Kerry Underwood

BANNING PRE-MEDICAL OFFERS TO SETTLE

with 10 comments


I deal with this subject in detail in my forthcoming book – Personal Injury Small Claims, Portals and Fixed Costs available from Amazon here.

This is the fourth of my pieces analysing the proposals in the Ministry of Justice consultation paper – Reforming the Soft Tissue Injury (Whiplash) Claims Process which can be accessed and responded to here.

The consultation closes on 6 January 2017 at 5.30pm.

Part 5 – Introducing a prohibition on pre-medical offers to settle RTA related soft tissue injury claims – is at pages 31 – 32 of the report.

In reality this should be a non-issue. If every firm saw every client, then there is no problem at all as you take a Witness Statement from your client, including details of the injuries, and will be able to judge the acceptance or otherwise of any offer.

In spite of the title the Government is in fact consulting on whether there should be a ban on pre-medical offers in all personal injury claims. Question 17 and 18 read:-

“Question 17: Should the ban on pre-medical offers only apply to road traffic accident related soft tissue injuries?

 

Please explain your reasons why.

                                                                                                                               

Question 18: Should there be any exemptions to the ban, if so, what should they be and why?”

Of course the first question should be “who is going to pay for the medical report upfront?”

The Ministry of Justice and the Lord Chancellor do not seem to realise that basically law firms act as banks for those clients in relation to medical reports and pay, or agree to pay, the £216.00 fee. Ultimately, in a successful case, this is recoverable from the defendant.

Most solicitors get this on credit. Obviously individual claimants will not be able to get such credit from MedCo reporters and thus will have to find the upfront if unrepresented – and it is of course the Government’s idea that everyone should be unrepresented in such claims.

There is a court fee remission. There is no medical report fee remission scheme.

There are so many ironies in these two pages, that it is hard to know where to begin.

Here is paragraph 105:-

“It has been argued that this type of offer is used to control the costs of the claims process. The argument is that it is not commercially viable to challenge low value PI claims in the fast track. It is not known exactly how many such settlements are made each year, but anecdotal evidence indicates that around 10% (in excess of 50,000 cases) of all RTA PI claims are currently settled without a medical assessment.”

We know that none of these claims will be in the fast-track as the Government is both increasing the small claims limit to £5,000.00 and slashing general damages for RTA related soft tissue injury claims so that they will all be in the small claims track.

In any event, surely a rich and powerful multi-national insurance company should be free to take a commercial view and settle a matter to avoid legal costs.

After all that is what happens up and down the country every day in litigation.

The whole tone of everything coming out of the Government, the Judiciary and everyone else for years has been that matters should be settled, and not subject to litigation, which should be a last resort.

Thus we have the courts punishing parties in costs for not making offers and the Pre-Action Protocols all, without exception, require parties to seek to settle matters.

Yet here is a proposal, which the Government intends to enshrine in an Act of Parliament, making it illegal for one party to potential litigation to make an offer to settle a matter, however generous that offer is.

Take paragraph 106:-

“There is also anecdotal evidence that a proportion of claimant solicitors request such offers on behalf of their clients to close the claim quickly and maximise the profit made from the claim. This can lead to under-settlement for claimants and possible future litigation if the accident actually causes serious long term health issues to a client whose lawyer did not arrange for an appropriate medical examination and report.”

So this is put forward as a client protection measure to prevent under-settlement for claimants.

I do not know whether to laugh or cry. The whole tone of the paper is that soft tissue injuries – and that is all we are talking about here – are massively overcompensated and that the judges, the courts and the Judicial College have all greatly overstated the level of damages for soft tissue injuries.

Hence the Government’s proposal to slash general damages in all but the most serious cases of whiplash – see my post – TARIFF FOR MORE SERIOUS RTA SOFT TISSUE INJURIES and SOFT TISSUE INJURIES: CONSULTATION IN DETAIL

So, for example, on the Government’s own figures a soft tissue injury of 0 – 6 months duration would attract an award under the Judicial College Guidelines of between £200.00 and £3,520.00. That is to be reduced to £400.00, with just £25.00 extra for psychological injuries.

Throughout the tariff system psychological injuries are valued at 13.7 pence per day.

Yet the author of this report talks about the behaviour of claimants’ solicitors leading to under settlement for claimants.

This is beyond parody.

Throughout the report the Government refers to the Judicial College 12th Edition Guidelines.

They were replaced in September 2015 by the 13th Edition and therefore the figures given for existing levels of award are in fact too low. This obviously has the effect that the proposed Government cuts in damages are even greater than appears in the report.

Yes, of course insurance companies take a commercial view – and indeed they are bound by their duty to their shareholders to do so. However the idea that insurance companies are regularly paying up on claims they know to be completely fraudulent is plain nonsense.

How curious that the Government feels the need to protect insurance companies in a way that even the insurance companies do not think necessary.

With fixed tariff damages this leads to absurdities. A client is injured and after four months agrees that s/he has no continuing symptoms and does not suffer psychological injury. By law the damages are £400.00.

Yet the parties cannot settle that aspect of the claim without obtaining a medical report which will cost £180.00 at current rates. That is ridiculous.

Furthermore if there is a need to protect claimants against under settlement and to prevent insurers from taking a commercial view, then why is this prohibition not being implemented across the board, not just the personal injury board, but the entire civil litigation process?

 

I refer above to the fact that the Government is consulting on having a ban wider than RTA soft tissue injury but it is clear from paragraph 112 that that is their preference.

“In introducing a ban it is important to be clear on the scope of such a ban. The government proposes that a ban on pre-medical offers should apply only to RTA related soft tissue injuries. We have considered whether the ban should be extended to all PI claims, partly to ensure consistency in approach, but we believe it is debatable how much extra benefit there would be in such an extension.”

The government is also concerned that “many major retailers have budgets set aside to settle claims speedily.”

So what are they meant to do? Refuse to settle claims speedily? Fight every claim?

As stated above in every other area of law the whole system is designed for parties to try and settle claims speedily and yet here are supermarkets being criticised for doing just that.

These are the two worst pages of illogical trash that I have ever seen from a Government department.

Please see my related blogs:-

SOFT TISSUE INJURIES: CONSULTATION IN DETAIL

PERSONAL INJURY SMALL CLAIMS LIMIT: CONSULTATION IN DETAIL

ANYWHERE COUNTY COURT 2018: SEND IN THE CLOWNS

TARIFF FOR MORE SERIOUS RTA SOFT TISSUE INJURIES

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Written by kerryunderwood

November 23, 2016 at 9:54 am

Posted in Uncategorized

10 Responses

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  1. Do you have an up to date MIB book?

    Sent from my iPhone

    Ashiq Patel

    07974 150 777

    ashiq patel

    November 23, 2016 at 9:58 am

  2. I thought you’d previously said that pre-Med offers should be ratified by an independent solicitor? You’re now suggesting that insurers should make any offer the like whenever they like. Or am I missing something?

    Confused.com

    November 23, 2016 at 10:01 am

    • Yes- you are missing something. Yes of course insurers should be able to make any offer whenever they want. You are right in saying that my view is that any offer- post or pre-medical, should be considered and advised upon by an independent solicitor, exactly as must happen, by law, in all employment matters.

      You can agree or disagree- but my approach on this has been consistent.

      Kerry

      kerryunderwood

      November 23, 2016 at 10:17 am

  3. Isn’t there more to it than this? If a medical report is mandatory and lawyers aren’t to be involved, this means that injured parties are now required to stump up the £216 Medco fee before there is any hope at all of a claim being successful. Unless insurers are planning to pay for medical reports upfront, the ban on pre-medical offers creates an extra hurdle for claimants and makes it all but impossible for those without funding to make any sort of claim. A ban on pre-medical offers only makes sense if claimants have access to proper legal representation.

    Angry Barrister

    November 23, 2016 at 10:09 am

    • Very good point indeed. Thank you. Will add in to blog accordingly.
      Kerry

      kerryunderwood

      November 23, 2016 at 10:12 am

      • It strikes me as particularly unfair and onerous for the average claimant. In order to make a claim against an insurer for a whiplash injury, a claimant would have to pay £216 up front for a medical report and a £50 issue fee up front, all in the hope of getting £400 plus their costs returned. This acts as a significant barrier for all but the wealthiest proportion of the population. Those that can afford it won’t bother. It amounts to a regressive tax on being injured.

        Angry Barrister

        November 23, 2016 at 10:32 am

      • I agree. Analogous to Employment Tribunal fees, which have led to a 67% drop in cases.

        Kerry

        kerryunderwood

        November 23, 2016 at 7:32 pm

  4. The medical report fee, GP records and court fees would actually be more than the compensation awarded to the Claimant in many cases. No doubt the insurers would still complain that “for every £1 we pay in compensation, we have to pay £1.20 in legal fees”. It is literally beyond a joke!

    sam

    November 23, 2016 at 10:43 am


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