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10/04/2021 | News release | Distributed by Public on 10/03/2021 22:30

The great unknown – what's next for the MoJ’s pending review and amendments to SCT in EL/PL matters?

For a significant period of time, it was anticipated that £2000 was the increase to be proposed to the small claims track limit for Employment Liability / Public Liability claims as part of the MOJ's ongoing Civil Justice Reforms. The recent launch of the newly increased limits applicable to RTA 'whiplash' claims has, it seems, generated more questions than answers (but nothing new there). Issues of guide/usage complexity and confusion on how the tariffs deal with multiple, simultaneous, injuries remain in question - one which will no doubt be answered by the Court of Appeal in due course.

It appears following a recent publication, that the increase to this track will be limited to £1500 (for now). It is worth noting that this increase was opposed almost across the board - from Claimant and Defendant Lawyers / Representatives to Insurers. It is clear, given the industry-wide opposition, that all involved were hoping the MoJ would drop the reform altogether, but no so such luck with Wolfson confirming: 'Delivering this reform remains a key government priority but we believe that a more modest increase in the small claims track limit for non-RTA related claims is justified'. It is not entirely clear at this stage who the MoJ believes these reforms will assist given the industry-wide opposition.

EL / PL claims are known and generally accepted to be more complex than their RTA counterparts. Why? Well, EL claims are subject to multiple common law and statutory provisions that assess or guide the Court as to determine liability. Investigations can be time-consuming and complex. PL claims are also subject to common law and statutory provisions (albeit a lesser number of statutes are often applicable to public liability matters). The legal framework on which these claims are formed is only one aspect for consideration.

Litigants in person will also need to grapple with evidencing their claim on the balance of probabilities - considering disclosure (and the associated CPR/common law principles) in the context of a denial of liability - which can be voluminous/contentious, regardless of claim value. They will need to deal with medical evidence and no doubt arguments on causation, paired with grappling with the use of a new claims portal (which currently comes with a 64-page guide for users of the OIC).

It is wholly unclear presently, whether the EL/PL track increase will apply to all injuries or a specified selection. If as the guidance suggests, the limit will apply to "all other personal injury claims to £1,500"

Judicial College Guidelines, at a glance, and based upon the current proposed limit - cover minor injuries (anything up to a three month recovery period) dealing with scarring, skin conditions, some "lesser" and "minor to moderate" aspects of orthopaedic injuries (very few fall into this lower bracket), facial injuries including fractures, facial scarring and loss/damage to teeth. As can be seen, the current value catches several different injury types, all of which can and no doubt will be subject to the instruction of experts across a range of disciplines, which will in turn lead to causation arguments. How litigants in person will deal with these remains to be seen.

No doubt, there will be a "trial and error" assessment based upon the next six months practical usage of the OIC. Scrupulous CMCs and indeed claimant solicitors will be watching the developments via the OIC closely, with a view to establishing any route out of the SCT value banding for the EL/PL claims that they can. Naturally, any limitation on compensation (and, to the cynical mind, legal costs)...brings with it the increased risk of fraud and/or dishonestly where those pursuing redress will look to inflate an alleged accident impact from a causation perspective. One such example is the potential trend of tinnitus linked to RTA accidents - a development pre-fixed costs and OIC portal that was not particularly common.

The official public release also confirmed

"Having reflected on stakeholder feedback the government has decided to defer the implementation of this measure until April 2022 and to amend the proposed increase to £1,500. This pragmatic decision will provide additional time for affected stakeholders to prepare for the increase".

April 2022 is currently, at the time of this article, six months away. It is not clear whether the MoJ will follow the OIC with the implementation of the 'fixed' tariff. The starting point may well be those injuries that currently fall below or start at the proposed £1500.00 limit. All of the above considerations currently remain unanswered for practitioners across the industry.

Crawford Legal Services continue to monitor the OIC developments paired with the MoJ's focus on amending the track value in EL/PL matters. We are well versed in adapting to industry trends and legislation changes and our Speciality Risks Team is ready to tackle these head-on with clients - working, as always, as a strategic partner/ extension of their business. Should you wish to discuss this article, or indeed any of our services, please contact:

Andrew Higham
Associate, Crawford Legal Services
E: [email protected]
P: +44 (0) 0151 242 3299