Legal Update: Use whiplash claims to pilot the Online Court

There can be no doubt the government is intent on radical change in our justice system. The policy paper published on 15 September by the Ministry of Justice and Lord Chief Justice is appropriately titled Transforming our Justice System and while the detail may not take matters much further or come as a surprise, the intention is clear.

For many involved in personal injury claims, there was disappointment that the announcement contained nothing about the reform of soft tissue injury claims announced by the last government in November 2015. Those proposals included banning general damages for pain and suffering in low value claims and increasing the small claims track limit in personal injury claims. A consultation was originally planned for March 2016 but it now seems there will be further delays with those reforms.

Not only was the Autumn Statement not mentioned in the policy paper, but there is still no hint yet about how, if at all, the MoJ plans to link up soft tissue injury reform with the wider issues of the Online Court and access to justice. 

Extending the system
The extension of fixed fees beyond fast track personal injury claims and intellectual property claims has been long awaited. Lord Justice Jackson's speech on 28 January 2016 advocating fixed recoverable costs for all cases up to a damages value of £250,000 did not come as a surprise. He recommended fixed recoverable costs for fast track cases in his final report on civil litigation costs in December 2009 and has argued for an extension of this scheme for some time.

The consultation on fixed fees in clinical negligence cases is long overdue. The implementation of those reforms was originally planned for October 2016. The government's announcement that fixed fees will be extended "to as many civil cases as possible" will be welcomed by the insurance industry.

Yet the government's announcement still has no timetable for consultation and only the vaguest indication that "senior judiciary will be developing proposals on which we will then consult" and the promise of legislation "in due course" to enable the reforms where necessary. Hardly a blueprint for transformation but at least the principle has at last been settled.

The announcement in relation to the Online Court similarly tells us little but does indicate that the government has bought into Lord Justice Briggs' proposals in principle and provides a commitment to digitisation, the Online Court and simplified rules to support it. 

Principles of soft tissue reform
The government made clear the principles of soft tissue injury reform last autumn. Yet we are still no further forward with it. It is probably fair to say that the MoJ underestimated the complexity involved in achieving the Chancellor's objectives. Most stakeholders, for example, now accept that simply increasing the small track limit and pushing many thousands of personal injury claims into the small claims track process will not work.

A new process for handling pre-action claims, similar to the current portal for low value injury claims, is needed, with an efficient process for those cases - and there will be many - that cannot be settled without proceedings. Building such a system will not be quick or easy. The Online Court could be part of the solution but there is a significant difference between the government's original timescale for soft tissue injury reform (2017) and the likely start date for the Online Court (2020).

One solution might be to bring forward a pilot of the Online Court specifically for personal injury claims. This would help the government implement its soft tissue injury reforms in the near future and test what, in any view, is an ambitious plan to transform our justice system.