My Lords, I have added my name to Amendments 27, 47 and 52, to which the noble Lord, Lord Marks, has referred, which relate to some of the most fundamental points in the reforms. They involve the procedure which will exist for genuine claimants through the small claims track and/or the portal.
I am saddened but grateful to my noble and learned friend the Minister to learn that it is not an unintended consequence of the Bill that genuine claimants will be caught. It is an intended consequence of the Bill, so there is a high onus to ensure that access to justice is ensured for genuine claimants.
The noble Lord, Lord Marks, referred to no legal representation but, having worked in what was then called small claims arbitration I know that defendants are usually legally represented. In Scotland personal injury claims, which are generally more complex, are outside its equivalent of the small claims procedure because of the asymmetry of the relationship in the small claims track between the claimant and the defendant. Having represented defendants in those circumstances more times than I care to remember, I know that although district judges go out of their way to try to ensure that there is fair procedure, they cannot step outside the boundary of their judicial role. Invariably, therefore, as the legal representative of the defendant, you know that you are at an advantage.
It is important to remember that, on the figures I have been given, 40% of people who buy fully comprehensive insurance do not also buy legal expenses insurance. Therefore, in order to recover their personal injury losses, their uninsured losses, and their often considerable excess losses—which can be about £500—genuine claimants pursuing personal injury losses, more often than not, will be litigants in person using the small claims track or the portal.
On the claims portal which has been mentioned, I know that a working group at the Ministry of Justice is looking at the new portal which will ensure that litigants in person have access to a streamlined procedure.
At the moment, however, you are within the claims portal only if liability is admitted. Some 75% of insurers have apparently signed up to pass on premiums so, like claims management companies and lawyers, we have good, exemplary and not-so-good companies. Unfortunately, with unrepresented claimants, there is now an incentive for certain insurers to deny liability because once they do so, the case comes out of the portal. It is then for a defendant insurance company to deal with a claimant—precisely the asymmetry of the Scottish situation. We have talked a lot about cold calling. Imagine being in that situation as a claimant trying to recover personal injury losses and an excess.
You are busy, you are working and nobody is there to advocate between you and the defendant insurance company. That is a worry in relation to how the current portal operates.
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As I understand the Ministry of Justice proposal, this will be a kind of gateway portal that can be accessed and which brings at least six other portals together. It is for litigants in person, dealing not only with the defendant but with the MI database, the current claims portal, the MIB database, MedCo and askCUE, the fraud database. As I understand it from claimants’ solicitors, the current claims portal is not even accessed directly by trainees or fee owners. Such solicitor firms—I am looking to the noble Baroness, Lady Primarolo—have an IT set-up that they have either designed or purchased, and that IT software system engages with the claims portal. It is not the trainees; they are all trained on the IT system to access it. It is not like a conveyancer dealing directly with, say, Companies House or the Land Registry doing a search. Even the existing portal is not accessed by litigants in person or solicitors directly. They have spent resources to ensure that they have an easy point of access to the existing claims portal, which is one of the six portals that the new gateway for litigants in person will create to make it easy for unrepresented people to deal with defendant insurers and get back their personal injury tariff amount and excess—a considerable amount of money.
We are in a situation that we increasingly encounter: we cannot know whether the Bill will work, do justice and achieve something unless we know a considerable amount about a piece of tech that the MoJ suggests will make things easy for litigants in person to deal with. I know that your Lordships may think that when it comes to IT, I have an advantage because I am relatively young, but I glazed over when I was presented with the electronic way to upload my amendments. I ended up doing it the traditional way because I had not had the training and could not do it electronically. I cannot imagine what we expect of litigants in person with busy lives. Claims will start, then stop, and the insurance companies will start talking about suspected fraud. Apparently, if a claim starts but you get busy or your mum falls ill or you get a medical condition and stop the claim, the insurance companies now rely on suspected fraud.
We need to know an awful lot more from the Minister about the progress in creating this portal before we can be satisfied that the tariff and the other sections of the Bill will achieve what the Bill wants. I am concerned about the prospect of unscrupulous insurance companies denying liability to get it out of the portal so that they are then dealing directly with claimants, as well as the issue raised in the amendments of suspending matters until we have seen what the small claims situation will be for personal injury claims.