By Scott Whyte, Managing Director, Watermans Solicitors
MOST people will be unaware of The Civil Litigation (Expenses and Proceedings) Bill, which is due to come into force in Scotland soon. But anyone involved in an accident in future will be grateful for this new law, which is designed to create greater access to justice by improving the way in which litigation claims are funded and administered in our civil courts.
The Bill is an admirable attempt to level the playing field in “David versus Goliath” cases and balance the scales of justice that for too long protected big insurers from legitimate claims.
Starting a personal injury claim is a daunting prospect for many people, even when their grounds to pursue compensation are perfectly legitimate. It is often a lengthy legal process and a fear of cost implications can be enough to deter valid claims.
At present, the losing party usually covers the legal expenses of the successful party, but the Bill will alter this. The legislation suggests introducing qualified one-way costs shifting (QOCS), which means someone pursuing a personal injury claim would not have to cover the defender’s legal costs if the claim fails. Concerns have been raised among the insurance industry that QOCS will encourage people to push on with weak claims and make it more difficult for claims to be settled to reach court.
Ideally, it will allow solicitors to take forward cases where the law is untested and could be improved.
At present, solicitors can take flak for only accepting cases conventionally viewed as having a high chance of success. QOCS should remedy this by allowing what are theoretically less clear-cut cases to be heard. A similar scheme to QOCS is already successfully up and running south of the Border.
When it was introduced, there was no dramatic increase in claims, as the insurance industry alleges will happen here. To argue this is simply untrue and the latest in a string of excuses put forward to justify yet another annual hike in insurance cover for Scottish motorists.
Between January 2016 and December 2017, insurance premiums increased for eight successive quarters. For years, insurance providers have created numerous scapegoats – from fraudulent whiplash claims to the costs of fixing a car – to justify price rise after price rise. Data from the industry body, the Association of British Insurers, has shown a decrease in the total cost of personal injury claims.
Labour rates for both fault and non-fault repairs also have not increased for years. How can insurers hike up premiums when their own research shows they are paying out less? We’re still waiting for an answer to that one. It will be interesting to see if the new legislation becomes the latest excuse to hit road users in the pocket.
It is also worth remembering that insurers can settle a case whenever they like, and long before it reaches court. But, rather than make a fair settlement offer, we see case after case where they treat injured people with contempt through derisory offers.
Compensation is not a handout; it is essential financial support to protect an individual (and their family’s) wellbeing after an accident. Those unfortunate enough to suffer an accident – and their representatives – should not be criticised for holding out for a reasonable offer from insurance firms that prioritise shareholders over people.
As insurers’ profit margins grow fatter every year, we should welcome measures such as the Civil Litigation Bill that aim to level the playing field for accident victims.
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