The upsurge of COVID-19 has been a game-changer in the personal injury sector. That includes the scope of purchased insurance products and their coverage. The game has also been changed through the role of technology. Tech now provides for the possibility of an ever-more efficient, more transparent, confidence-inspiring and more consistent claims handling framework across the UK.
The question is will we see more or fewer claims as a result of the pandemic? Early data analysis of MoJ portal claims shows that CNF’s referring to COVID-19 are already being submitted.
This current pandemic we are facing with is having a wide and vast effect on our day to day lives, both personally and at work. As a pre-litigation executive here at Din Solicitors, our department is still running business as usual however it’s important to recognise that the current situation will have an effect on the way that personal claims are progressed, and our immediate aim is to maintain our service to our clients and ensure that all matters can proceed with the minimum delay.
For those matters where court proceedings are not underway, or needed, as expected insurance companies are facing huge volumes of claims in relation to coronavirus, which can have a knock on effect of the issuing of payments in relation to personal injury claims. To some extent these delays are understandable but in circumstances of essential need, there may be steps that can be taken to advance your claims.
There is some general consistency among the courts in terms of their approach. However, there are local variations: some courts are conducting all hearings remotely. Other courts are only adopting this approach for interim hearings. The absence of specific rule amendments (or guidance on how each hearing should take place) has essentially resulted in local practice directions being made by Designated Civil Judges (DCJs), district by district. However, it is also clear that the DCJs have attempted to coordinate their approach between themselves. A delay of at least six months is envisaged in contentious cases which need to be tried.
The social distancing measures and prioritising delivery of NHS healthcare over medico-legal work, has understandably resulted in the cancellation of face-to-face appointments. However, even remote/virtual examination is not always viable and cancellations and postponements will inevitably impact upon the procedure of many cases.
It is quite apparent that decline in traffic levels during lockdown had a vast effect on personal injury claims; accident and claims rate has fallen significantly, though some analysis suggests driving is at higher speeds and has resulted in more serious collisions. The Metropolitan Police reports an eight-fold increase in speeding fines for the same period in 2019, and reports speed as the major factor in several fatal accidents during lockdown.
It’s not surprising to see hire claims are down in volume, but the period of hire has extended resulting in an increase in value of hire claims. Thus, new hazards include a lot people driving after many weeks are bound to be “out of practice.” An increase in pedestrians walking in the roads as they practice distancing, and a significant increase in cyclists on the roads need to be noted here; less driving, more working; less RTA claims.
Although it’s refreshing to see a greater collaboration in dealing with court timetables, some claimant firms are pursuing disproportionate and untimely action, such as pre-action disclosure applications or immediate enforcement actions. The Association of British Insurers (ABI) has led, with input from various claimant firms, a consensual extension to the personal injury protocol which took effect from 24 March. It is worth noting that not all insurers have followed this proposal, and some are still questioning requests for extensions to limitation in the forensic context of the conduct of the claimant representatives to date, how long the claim has already been presented in pre-litigation and so forth. More recently the Association of Consumer Support Organisations (ACSO) and ABI statement of intent has led to several insurers and claimant law firms adopting the approach or the spirit of the approach within bilateral agreements.
Careful attention must be given on a case by case basis before agreeing to ‘virtual’ examinations by telephone or video call. A physical examination later may still be required, increasing costs. Medical examinations in person may be preferable where credibility is potentially an issue, or where the injuries or the individual’s circumstances, do not lend themselves to remote examination. Increased prevalence of fraudulent claims should be considered, in the context of an economic downturn with a potential increase in staged/contrived accidents and exaggerated personal injury claims. The pandemic has provided further evidence of just how necessary the current £1 billion HMCTS court modernisation reform programme is. It seems likely that more hearings will be conducted remotely once the pandemic is over, and as courts are necessarily better resourced to cope with remote hearings. This applies to MoJ Stage 3 hearings being an obvious and sensible body of cases to be heard remotely. These differential approaches by the courts, as well as claimant firms will enable insurers to adapt accordingly to maximise speedy resolutions as the saying goes “Know your opponent and know your court strategies arguably become more important”
The crucial aspect here is the claims moving forward to litigation and to avoid unnecessary months or even years of delay with postponed medical appointments, re-extended court deadlines, repeat hearings and repeat trials, insurers and those advising them are often rightly taking a more pragmatic and commercial view of claims.
Moving forward with Coronavirus
Although implementation of the game-changing whiplash reforms has now been pushed back to April 2021, insurers will be mindful they are coming and, with them, an online dispute resolution system for volume claims soon. Some commentators have suggested that the further delay may see the reforms shelved altogether. Remote examinations and virtual court hearings seems like the future legal system in the world of RTA claims.
Important changes to the Civil Procedure Rules (including Part 36 offers, mitigation of loss, and witness statements) brought in on 6 April must also be kept in mind.