The new whiplash portal: Is it ready and will it work?

Official Injury Claim goes live today, with personal injury lawyers and insurers dealing with potentially the biggest change to the secton in almost a decade.

The portal for RTA claims up to £5,000, designed for unrepresented claimants, has been delayed 13 months but is finally ready to go. We asked leading industry figures whether it is ready and what the next few weeks and months have in store.

Brett Dixon, vice president of the Association of Personal Injury Lawyers: 

As it stands the CPRC has signed off the rules and the spotlight is now on MIB and the MoJ to get the build completed and properly tested. One of our greatest concerns is the lack of time for robust user testing.

Writing a guidance document for beginners to a complicated area of the law was never going to be truly sufficient. It is founded on the premise that the third sector will help litigants in person, but we can’t expect an underfunded third sector to be able to fill in every gap in legal advice. Without robust testing it is unknown how big the problem will be.

It may take time for problems to surface. The portal only applies to injuries sustained from 31 May. Most injured people do not make a claim for compensation immediately, but those who do should not have to play the role of guinea pigs.

Even if the operational elements of the portal are perfect when it goes live, there are still significant gaps in policy which will create sticking points for injured people, including how claims with multiple injuries will be valued, a lack of ADR, and how multiple defendants will be dealt with.

James Dalton, director of general insurance policy for the Association of British Insurers:

The start of the Official Injury Claim Portal is a watershed moment in the reform of the UK’s civil justice system. While the journey to this point has been long and, at times, frustrating, the focus of the insurance industry has always been to ensure that the needs of genuine personal injury claimants are at the heart of a simpler, more efficient, cost effective compensation process.

There have been times when the industry has strongly disagreed with some in the claimant sector on the need for these reforms. We believe that safeguards, including the Portal Support Centre should give litigants in person the confidence and reassurance they need to use the system and, of course, there will always be some claimants who will want to use the services of a lawyer.

The ABI has been working closely with insurers and the Motor Insurers’ Bureau to ensure the industry is well-prepared to provide a good service for claimants when the portal goes live. While our views may not always align and views differ on the need for these reforms, I’m grateful that so many in the wider claims sector have worked collaboratively to ensure that the genuine claimant’s interests remain at the heart of a reformed personal injury compensation system and the Official Injury Claim Portal will have a pivotal role to play in the future.’

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations:     

A famous FBI source once advised Washington Post reporter Bob Woodward, who was investigating the Watergate burglary, to ‘follow the money.’ That epithet applies equally to the whiplash reforms. After more than 2,000 days since they were first announced, and with the new portal upon us, there is still nothing to show that the changes will do much more than save insurers money.

Injured people have had their access to justice curtailed, the so-called people’s portal is complex enough that only a small minority of claimants are likely to use it, and the government has now admitted at the eleventh hour that claimants with mixed or ‘hybrid’ injuries will struggle to get what they need from it anyway. Our expectation is that more flaws in the portal’s design will emerge during the coming weeks, and that the make-do-and-mend approach will continue.

The lesson of this case study into public policy is surely that cross-industry co-operation achieves better consumer outcomes than government intervention, especially when it has been designed by and for producer interests. All sides of the claims industry are at fault; lawyers for not seeing the need to rein themselves in, and insurers for riding roughshod over their long-suffering customers who, after all, have no choice but to buy their products. We all owe it to the public to do a lot better in future by working together.

Jonathan White, legal and compliance director with National Accident Helpline:

Injured people are often vulnerable and fearful of legal process, legal costs, court rooms and insurers. The Official Injury Claim portal, which hasn’t been widely publicised, is frightening.

The 64-page user guide contains cross referencing and unfamiliar legal terms in the introduction and does little to deal with the inherent fear of the legal system. These technical documents run to hundreds of pages and individuals who stumble across the portal simply won’t use it.

The reaction of injured people to the tariff and new process is unknown. How is someone with a debilitating 10 week neck and back injury going to react to the news that they might end up with £240? Expectation management is going to be a huge issue for everyone involved. The retention of remote medical examinations and the swift development of affordable ADR are essential.

It’s clearly going to be a bumpy ride for injured people, insurers and lawyers during the first hundred days. It will be up to the technology driven law firms and insurers to cooperate more than ever before, to make this work for injured people.

Nigel Teasdale, past president of the Forum of Insurance Lawyers, and partner at DWF:

The principles of the original whiplash reforms sounded straightforward – an increase in the small claims limit for RTA, a new tariff for whiplash, and a Portal so that claimants could easily access justice without recourse to lawyers.

Yet time has shown that building the rules and infrastructure to accompany those principles has been far from straightforward and there are many challenges ahead. We are still seeing legal judgments interpreting the introduction of the original Portal in 2010 and on reflection that actually seemed a lot simpler than the new Protocol and Portal.

There will inevitably be litigation as the boundaries of the new process is tested. As we reach the implementation date, as defendant lawyers we are first and foremost advising insurers on the implications of the new rules, but also preparing to deal with the issues that the rules haven't answered and will no doubt require litigation to resolve.

Key issues surround the assessment of quantum and the thorny issues of how to value additional injuries, what constitutes exceptional circumstances to warrant a 20% uplift, and what is a minor psychological injury.