Thursday, 24 August 2017

Personal injury reforms: CMC regulation is vital

Donna Scully (pictured), partner at law firm Carpenters, looks ahead to next week’s Parliamentary committee scrutiny on personal injury reforms

The Justice Select Committee’s evidence session next week (7 February) is likely to be the only chance for Parliament to conduct some pre-legislative scrutiny on the Government’s ‘whiplash’ reforms ahead of legislation. This is clearly insufficient given the potential legal implications, disruption to the sector and the negative impact it will have on the rights of injured persons. If it is to be the best that we can expect, it must be made to count.

It is not difficult to see the circumstances where both the ABI and Association of Personal Injury Lawyers feel compelled to slug it out from their respective trenches, tossing arguments and barbed counter arguments, facts and alternative facts. I sincerely hope that it doesn’t play out like this. That it is not unnecessarily combative. Most people in the debate accept that the status quo is not an option. There are problems in the sector that need addressing.

To be clear, I think that the proposed reforms are a very blunt instrument to tackle some of the complex issues we face. They will unfairly penalise genuinely injured people, threaten our system of restorative insurance cover and create the conditions for a significantly less regulated market where the ability to pursue justice is severely curtailed. The judiciary is right to be worried that the proposals will place an increased burden on the court service and will not provide vulnerable litigants with the safeguards that the system really must provide.

Reform is necessary though. Elements of the claims process need review.

Reform should, however, only be implemented after careful consideration of all the consequences and as part of a balanced and proportionate package.

This must include the regulatory framework for CMCs, the transfer of powers and adequate resources to the FSA, provisions to tackle abuse in medical reporting and rehab, and extra powers and commitment by the SRA to genuinely tackle the worst lawyers.

Recent history has shown that piecemeal and staggered reforms will not work.

They will create a regulatory vacuum that will be filled by unscrupulous CMCs, the worst of the regulated sector and the unregulated. We need a balanced package of measures to achieve a just, efficient and smaller claims market. This can only be achieved by an honest dialogue, an airing of the areas of agreement that do exist and working together to develop practical solutions. Now wouldn’t that be a productive use of the Justice Committee’s time.

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