This piece appears in Issue 27 of Kerry On Costs… And So Much More…, a fortnightly publication costing £500 a year plus VAT, and available until 31 December 2022, including back Issues for 2021 here.
The new Small Claims Portal, together with the related Whiplash Tariff, which reduced awards in whiplash claims by up to 80%, came in on 31 May 2021.
Figures for the first three months of its operation to 30 September 2021, show that claims are down by around two thirds, with 45,718 claims being received.
Comparisons with 2020, when there were far fewer accidents due to cars being off the road during the pandemic, are less relevant than comparisons with pre-pandemic 2019, but still show a more than 50% reduction.
In the same period in pre-pandemic 2019, there were 168,217 motor claims registered with the Compensation Recovery Unit, some, but not a huge number, will have been non-portal claims due to their value.
Even value comparison is difficult, as claims which would have been valued at more than the portal limit, will now be in it due to the slash in general damages in whiplash claims; thus, there are potentially more claims for the new portal, but far fewer have been made.
On a straight comparison, claims are just 27.17% of what they were, that is down 72.83%.
As indicated, that is not the whole story and a key figure will be the number of claims received on the old portal for the same period, although that too has to be treated with caution, as old claims, that is pre-31 May 2021 accidents, are not subject to the new Small Claims Limit, nor the Whiplash Tariff.
Each quarter’s figures will show a more accurate comparison as the old cases disappear.
Any which way, claims are down by two thirds or more.
Of those 45,718 claimants, 41,387, that is 90.52% were represented, with just 9.48% acting as litigants in person.
These figures show that the Government’s aim of excluding lawyers from the process has not worked.
The inevitable conclusion is that around two thirds of people who would previously have brought a claim are now not doing so.
We do not yet know the reason or reasons for that, and it is likely to be a combination of:
(i) not worth bringing due to low damages;
(ii) fewer lawyers prepared to take on these claims;
(iii) difficulty following the extremely complex rules and the portal process.
Of the 45,718 claims representation is as follows;
| Solicitors | 30,658 |
| Alternative Business Structures | 10,622 |
| Litigants in person | 4,331 |
| Claims Management Companies | 107 |
| Total | 45,718 |
436 claims were settled by 8 September 2021, the vast majority from unrepresented claimants, even though they made up just 9.48% of claims.
That very strongly suggests under-settlement on a huge scale by unrepresented parties.
2,763 claims exited the portal other than due to settlement.
Just 33% of claims were Whiplash Tariff only, with the balance being hybrid, that is multiple injury claims, and we have no idea how those claims will be dealt with, as in hundreds of pages of guides, rules and protocols there was silence on this key point, which we now know involves over two thirds of claims.
That strongly suggests that whiplash only potential claimants are not claiming, probably for the reasons set out above.
Admissions of liability by compensators appear to be similar in relation to both represented and unrepresented claimants.
During the quarter liability had been admitted in part or in full in relation to 21,680 claimants and of these 19,366 were represented and 2,314 were unrepresented.
Liability was denied in full in 2,447 cases, and 4% of those involved litigants in person.
Comment
None necessary.
Justice is being destroyed in this country.
I am not against portals; generally the old ones work very well indeed. This was a nakedly political and class action; political because it pays off the insurance paymasters, class because the loss of £2,000 or so has a hugely greater effect on poor people than others.
The Master of the Rolls has recently spoken of a Claims R Us portal – leave aside that Toys R Us went bust- “with 50 or a hundred online pre-action protocols”, and also an Ombudsman process – leaving aside that that is an unmitigated disaster that is about to be scrapped.
The Court of Appeal, with the Master of the Rolls sitting, should declare this whole scheme a breach of Article 6 – the right to a fair trial- and declare it unlawful, just as the Supreme Court did with employment tribunal fees, notably overturning the decision of the Court of Appeal.
Then we may have more confidence going forward with other portals.
