With the small claims limit set to rise for different types of personal injury claims, thousands of injured claimants will effectively be prevented from accessing a lawyer who can represent them.
So far this year, out of my own caseload 40% have been disputed by the insurer on the issue of liability and/or causation with half of those cases requiring litigation.
Over 95% of all of my successful cases involved a significant dispute on quantum.
This year has not been an unusual year. This is how much insurers contest claims. This is not a revelation.
In the recent Judgment of Barton v Wright Hassall LLP (a genuine name no matter how good it sounds in a northern accent), the Supreme Court confirmed that unrepresented litigants will be expected to comply with the Civil Procedure Rules 1998 when pursuing a claim.
Therefore, the increases in the small claims limit will not only leave thousands of claimants without legal representation, they may well be required to comply with the same conduct and rules expected of lawyers whilst meeting all court fees upfront.
However, more significantly, they will be up against barristers and lawyers instructed and paid for by the country’s largest insurers who have no qualms about defending and denying good claims submitted by claimant lawyers – so imagine how they’ll deal with unrepresented claimants!?
What’s to say they won’t simply deny all claims made by unrepresented litigants just to see how many bother to take it further. That ‘first cut’ will probably weed out the majority of claims (no matter how meritorious those claims were).
Those that decide to take it further may be left with a fully pleaded Defence to try and overcome. Even if they secure an admission, the insurer could well make a pitiful offer of compensation with the claimant having no idea of what their claim is worth or what evidence they need or authority they can rely upon to justify more compensation than that on offer.
A recent case of mine was worth no more than £2,000.
Upon us presenting the claim notification form to the insurer – Liability denied. No disclosure received.
Upon us presenting witness evidence to the insurer and requesting risk assessment documentation – Liability still denied and no risk assessments available.
Upon us presenting expert medical evidence to the insurer – Liability still denied.
Upon us issuing court proceedings and inviting the insurer to reconsider its position – Liability still denied.
Upon court proceedings being served on Defendant company – Liability still denied and Defence filed.
Upon the parties becoming due to file at Court directions questionnaires – Offer of compensation made by Defendant. Subsequent negotiations resulted in settlement of just under £2,000.
In the new world, under the new small claims limit, this claim would almost definitely end up with one of the following outcomes:
a) Claimant submits claim to insurer. Liability denied. Claimant takes it no further.
b) Claimant submits claim. Liability denied. Claimant argues the case but decides not to pay court fee to start the court claim and so withdraws.
c) Claimant submits claim. Liability denied. Claimant pays court fee and starts court claim. Defendant defends to trial knowing that the most the Claimant will get is under £2,000. As there will be no extra costs for Defendant to pay for defending to trial and there is a chance that they may succeed with their Defence or Claimant may be awarded less than £2,000, there is no incentive for insurer to be reasonable or settle the claim. Claimant either settles for much lower sum to avoid trial or takes it to trial to get the Judge to award them what the insurer should have paid them all along.
Which of the above outcomes do you think will occur most if claimants are no longer able to instruct lawyers?