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Damian Ward

Damian Ward

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Necessity breeds invention – both good and bad

Blogs12/05/2020

23 March 2020. Who could have imagined what a significant date that would become for all of us in the UK? And who would have imagined the remarkable way that people have adapted to the challenges the effects of the global pandemic are having on daily life.

The old saying that necessity is the mother of invention has never been so apt. For many, digital working has become an overnight reality. BACS payments have replaced cheques, and practitioners on opposite sides have generally found a new congeniality (without wanting to stretch the point) in relation to court timetables, with the focus on keeping cases moving towards resolution rather than securing procedural advantage. Not everyone plays nicely, mind. 

Remote possibilities

Since necessity breeds invention, it is only natural that not all invention is a force for good. For instance, at first blush remote medical examinations seemed a horrifying prospect; yet if conducted properly (and video recorded), they actually have the potential to improve the quality of the process in minor injury cases, at least for adult and non-vulnerable claimants. Of course there is also the risk of the reverse, with satellite litigation around remote examinations where there is no meaningful record of what was done or said.

It remains to be seen what effect, if any, remote medical examinations may have on prognoses. There is some early indication in our own industry benchmarking that prognoses are now taking longer than when the examination is done face to face. Is this due to an abundance of caution on the part of the expert or because traditional ‘hands on’ physiotherapy is not available to claimants? Time will tell. In the meantime the inexorable rise of virtual physio treatment will continue. You might have noticed that I am a teeny bit sceptical.

Pulling out the back catalogue

During April compensators saw a drop in new claims of 60-80% on average, whilst consensus suggests that new claims in the Portal were down about 75%. This is inevitably a consequence of the huge reduction in traffic on the roads, although we have no real visibility on claims which may be sitting in the background, waiting for a sense of normality to return. I have heard some theories that staged accidents will increase or claimants will suddenly bulk-issue claims. I think neither is likely. Any accident, let alone a fake one, will be scrutinised carefully during this period of lockdown. Plus, with the court service suffering increasing backlog, the idea of litigating a claim and getting a quick home run to damages is fanciful. Probably better to keep the issue fee in the bank and work the pre-lit cases.

There is definitely increased and renewed vigour in the back catalogue of cases by some claimant solicitors and claims management companies. I have heard examples of claimant representatives seeking to take advantage of the ABI protocol in limitation extensions, but for cases long since dormant or repudiated. Naughty. However compensators are reporting increased activity in hitherto closed claims. This is no surprise; the current situation provides a perfect storm for an increase in farmed or aged claims being brought, either first time round or for another go. Given there are fewer new claims, even a dead one is a potential commodity. Also, a claimant who might not have previously been interested in pursuing a claim (or who became disinterested when the promise of immediate compensation was not kept) may well have a renewed financial appetite to do so, proving more susceptible to an unsolicited approach. Whether old claims are by definition unmeritorious or not - and that is ultimately a matter of judicial process - they are back in force.

We also have all the ingredients for an increase in fraudulent single vehicle accidents, unexplained vehicle fires, and unrecovered thefts. Whilst the government has required lenders to grant payment holidays in deserving cases, it may have come too late for some and is probably too little for many. A finance payment on a car or van can often be the metaphorical straw on the camel’s back. Indeed, some insurers have seen a noticeable spike in first-party claims for vehicles on finance. Any deepening economic downturn is only likely to exacerbate the problem. Policies are also being taken out for vehicles off the road, which are then ‘stolen’.  Online cover secured; claim presented. Simples, you might say.

Surging forward

There have also been predictions of a post-COVID litigation surge. Then APIL struck a deal with Her Majesty’s Courts and Tribunals Service to allow the issue of online proceedings (previously we were gloriously Victorian in only allowing paper Claim Forms to be issued). In a sense the barrier to issuing proceedings, for some at least, has been removed.  However, with cash being king again, the issue fee is likely better in the bank than in the pocket of HMCTS until a hearing date is given in 2021, if you are lucky. So the surge, if it comes at all, will originate from firms with deep pockets whose business models rely on litigation income, or those hoping to secure a procedural advantage through this period of change. Once the roads are busier - and as I type this I can hear a noticeable and marked increase in traffic outside - the litigation appetite will increase. My guess is that we will have a busy late summer. The option to roll over holidays to next year may well come in handy…