Time To Go It Alone? Do You Know Your Apples From Your Oranges?
As a Claimant, are you happy to be what is known as a litigant in person and proceed with a personal injury claim without legal representation?
The Government’s Proposals
The government has proposed an increase to the small claims limit for those who wish to bring personal injury claims. Presently, in order for legal costs to be recovered and paid for by the party responsible for the accident, the value of the claim for personal injuries needs to be in excess of £1000. The government proposes, however, that this will rise to £5000 for road traffic accidents and £2000 for other accident cases. The legislation is due to be heard in the House of Lords on 24th April 2018.
What Does That Actually Mean?
Obviously each case will depend upon its individual facts but as a guideline, for whiplash injuries sustained in road traffic accidents, the level of compensation awarded is likely to be in the region of £3,800 to £6,920 for a neck injury where a full recovery takes place between 1 and 2 years (depending upon the impact on lifestyle, treatment required and ability to work etc.)
So you could be injured for over a year and have sustained other losses such as loss of income, travel and medical expenses etc; but the costs no longer will be recoverable from the party responsible, it will mean that you will either face the option of losing a large chunk of your compensation in order to pay for representation, or will be left to deal with the claim yourself!
How Many Claims Are Likely To Be Affected?
The reforms are expected to affect 96% of whiplash claims.
In an impact assessment report published by the Ministry of Justice, such claims are described as ‘straightforward’. In my experience, however, even claims for these relatively small sums can still involve a lot of technical issues.
My concerns are as follows:
- How will the insurance companies treat these litigants in person? Will the insurers act responsibly and quickly pay out a reasonable sum where warranted? I doubt it! They certainly do not do that now! I understand that the YouGov report in 2017 found that two-thirds of those who had previously brought a claim thought that it would be difficult to settle without some legal support.
- Claim experts will need to be instructed. Will a litigant in person know who to instruct and how to instruct them? If the Defendant insurer instructs the expert, will that expert truly be independent? If the expert is instructed via a portal or online system, how will a litigant in person know if the report covers all material points?
- Will a litigant in person know what levels of compensation are reasonable? Fixed tariffs are proposed for injuries of up to 2 years, but what about compensation for other losses?
- Will a litigant in person appreciate that when settling a claim for a sum offered by an insurer that it will be in full and final settlement of the claim and it will not subsequently be possible to go back and claim more, should the injuries turn out to be more severe than anticipated and for example, develop into a more serious condition such as chronic pain, which could affect future earning capacity?
- What will happen if the insurers refuse to put forward a reasonable sum and it is necessary to issue Court Proceedings?
If it’s unsatisfactory, can the court help? It is shown that this won’t be possible because the Court staff are not trained for or permitted to give legal advice. Individual Claimants will be left to bring their claims against insurers which will have the funds to instruct solicitors. Unfortunately, it seems that this won’t be an even playing field.
Will A Litigant In Person Be Expected To Know All The Rules?
The answer is yes!
The Court may make allowances to litigants in person when ordering case management decisions and when conducting hearings, but the court: “will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.”
The law can be a minefield even for experienced practitioners. A recent example of the dangers of this can be seen with regards to service of a claim form. In this era of technology, how many litigants in person would know, for example, that it is not permitted to just go ahead and serve a claim form by email? This is exactly what Mr Barton found to his detriment in the recent case of Barton v Wright Hassall LLP (Mr Barton should have obtained prior authorization from the Defendant that they were prepared to accept service by that method).
Lord Briggs stated in that case that being a litigant in person does not provide “a free-standing reason why his botched attempt at service should be validated.”
Whilst, appreciating that restrictions on funding from legal aid and conditional fee (no win, no fee) agreements meant that it is “not always a matter of choice” for litigants to have to act in person, the Court was nevertheless of the view that due to an increasing numbers of litigants in person, it would have meant uncertainty for insurers, had the court ruled in Mr Barton’s favour.
There Is No Duty For Defendant To Point Out Errors!
The Court also ruled that there was no onus on Defendants to point out errors to litigants in person.
Similarly, in the case of Reynard v Fox (2018), the Judges were of the view that just because a claimant was a litigant in person, this was no reason to dis-apply either procedural rules or order or indeed a sufficient excuse so as to not to comply with them. The court held: “You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person!”
The government is of the view that bringing road traffic accident claims for personal injuries is straight-forward and easy. It seems to expect that Defendant insurance companies will act responsibly and as such Claimants should not need legal representation.
It is, of course, possible that a new online system or portal will be set up that will make bringing a claim ‘easy’ but I very much doubt it! How this area will progress, remains to be seen.