Monday, February 20, 2012

Sponsored blog post: MOJ Portal for EL Claims: A big boot for workers

This month the Government published a response to a recent Ministry of Justice (MOJ) consultation paper entitled ‘solving disputes in the county courts’. Amongst a variety of other reforms to the civil justice system such  as increasing the small claims track for non personal injury claims to £15,000 the paper concludes that the MOJ Road Traffic Accident (RTA) portal process should be extended to other types of claim such as Employer’s Liability (EL), Public Liability (PL) and Clinical Negligence. Justice secretary Kenneth Clark said of the proposed reforms: “I want to make the system as easy and transparent as possible. These changes will produce a service that helps people to resolve their disputes effectively and in the simplest and quickest way possible so that they can get on with their lives and businesses’.

The original response to the consultation paper which saw the implementation of the MOJ RTA Portal system gave valid reasons for not extending the system beyond the low value RTAs which make up some 70% of claims pursued. Those reasons remain glaring and unchanged. The Government implemented the MOJ RTA Portal system with a primary aim of cutting costs to insurers in an effort to combat the significant rise in motor claims which have more or less doubled within the last 6 years. In contrast, the Compensation Recovery Unit statistics indicate that the number of registered EL cases has actually fallen by half in the last decade.    The so called ‘Compensation Culture’ is a myth.

The reasons for the dramatic fall in the number of registered EL accident claims is undoubtedly the force of the multifarious statutory regulation which directs employers health and safety practices and is enforced by the claimant’s right to sue in cases where breach has resulted in injury. The force of the legislation and the resultant tightening of employer safety practices led to the UK having one of the lowest work injury rates in Europe. This can only be a good thing.    

Instead of proudly publishing the UK record for work injuries David Cameron stated in January of this year that Health and Safety Laws were holding back business and made a pledge to wage war against the excessive health and safety culture that has become an albatross around the neck of British businesses’. At the same time to the conference of small businesses in Maidenhead he said that a cap on legal fees for personal injury cases would "deter the speculative health and safety chancers and those who leech off good businesses".

The notion of these ‘chancers’ in Employer’s Liability claims in particular is an utter fantasy. Mr Cameron is hoping to get back to Victorian times before workers fought for the right not to get squashed by unguarded and dangerous machines and made to work with dangerous chemicals and on tall buildings with no safety practices – the good old days when 122 years ago 57 men died building the Forth railway bridge.

The attitude of Mr Cameron and his Government has undoubtedly driven the departure from the original consultation conclusion that the portal system and fixed fees were not suitable for anything other than RTA liability admitted low value claims. 44% of those involved in the current consultation were members of the legal profession; the other 56% was made up of mediators, insurers, businesses, local authorities and even members of the public. In response to the specific question - whether the scheme should be extended was answered by only half those consulted replied and 47% were opposed.    It seems sensible to predict that much of the support was from the insurance and business industry enticed once again by a reduction in Claimant legal fees. Those who opposed the extension of the system pointed out that the significant contrasts between RTA and non RTA matters mean that a portal system simply is not suitable.  The response paper quotes one respondent to the consultation who shred my sentiment “No clear reasoning has been advanced as to what has changed in the complexity of EL/PL cases, or alternatively, in the ability of any scheme to deal with them effectively in light of their complexity”.

It is well established and recognised by anyone with a hand in the profession that even the most standard EL and PL claims are significantly more complicated than the regular RTA.   Compared to RTAs where liability is very often not in issue, EL/PL and clinical negligence cases are often denied and disputed. Instead of being considered and determined on the basis of one explanation of events versus the other (the case in the majority of RTAs), EL cases often turn not on the evidence of the Claimant versus that of the Defendant but on a detailed analysis of the defendant’s training procedures; risk assessments; equipment maintenance records; house keeping records and so on.   

As a result of the effort required to determine their position on liability insurers often fail to respond within the current pre-action protocol time limit of 3 months and 21 days so the idea that they would respond within portal limits, whilst welcome, seems entirely implausible on current experience. There may be a dispute over whether that individual is in fact an employee and even in admitted cases there are frequent arguments over contributory fault or causation which over simplified portal approach unsuitable. To force these matters into a portal process governed by a fixed costs regime which has no bearing on the actual costs incurred will see many smaller firms give up personal injury work altogether and restrict choice and consequently access to justice for the worker.

Laura Morrison.  Laura joined Clear Law Solicitors in 2008 and qualified as a Solicitor in April 2011. Laura specialises in accidents at work and horse riding accidents. She is a keen and experienced horse rider who has competed at national standard in affiliated dressage competitions across the country. Clear Law Solicitors is a Manchester based law firm, specialising in providing legal advice and help with personal injury accident compensation claims and mis-sold Payment Protection Insurance (PPI) compensation claims.

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