Confederation Report (December 2016)   

“I was flicking through the channels on the t.v., on a Sunday in Milwaukee in the rain...”


Name the band and the song! I’d be impressed if you can! But it is surprising how inspiration can appear without warning. Driving into work the other morning, I was musing on what to say in this month’s letter. Presidential duties have been limited of late. Now my normal journey to work occupies 30 to 40 minutes of tedious car travel, largely in traffic jams, getting into Newport of a morning. In common with many, the radio is on to while away the tedium. In my youth, I was a committed Today programme listener. However, as the years have passed, I find the incessant debate, arguing and confrontational approach of the programme, coupled with the normal stress of the daily commute, to be leaving me quite irascible by the time I eventually reach the office. Thus I switched to Classic FM of a morning. For several years now, prior to this morning, my decision appeared wise. I normally arrive at work in a far calmer frame of mind and ready for the day ahead (if one can ever really be said to be “ready”).


Unfortunately, all this was undone this morning. Whilst sat in traffic at 8.00am listening to the news on Classic FM, I was astonished that the headline report of the bulletin was the Government’s PI reform proposals. That there was little else to occupy the first slot on the bulletin is perhaps telling. However, what followed was the repetition of the same old hackneyed arguments about our “rampant compensation culture”, the fact that (as was implied in the report) most of these type of claims are fraudulent and the final promise from the insurance industry that the government’s proposals would involve a saving of £40.00 per year on car insurance polices. Well whoopee do! I’ll believe that when I see it. After the last round of costs slashing promising premium cuts, mine actually went up despite a continued claim free record! The one-sided nature of the report was truly breath-taking and I was left even more irate than I used to be having listened to Today on Radio 4!


Determined not to allow it to get to me, I put it out of my mind until lunch time. Then, on reading the BBC news website, blow me if the same issue was not centre page there as well, with the banner headline: “Whiplash plans to ‘cut car insurance premiums by £40’”.


I read on and, as I did so, my anger increased exponentially. The article I read over lunch (since amended I note when I came back to it to write this piece) claimed that whiplash injury claims had increased by 50% over the last “decade”. In other words, at an average of 5% per annum. In comparison, in the last complete year I could find statistics for easily to write this article, 2014, the percentage increase in new cars appearing on UK roads was 9% in that one year. Almost double the alleged increase in claims being so loudly trumpeted. It stands to reason that, if you add more vehicles to the roads, an increase in accidents is likely to follow. I know that the statistics state that the number of road accidents is actually falling, but is that really correct bearing in mind that a lot of “minor” accidents never trouble the Police and are, consequently, not necessarily independently recorded? In short the old adage remains true: there are lies, damn lies and statistics!


The more alarming comments on the BBC site were attributed to our “Justice” secretary Liz Truss, who was reported as stating: “For too long some have exploited a rampant compensation culture and seen whiplash claims an easy payday, driving up costs for millions of law-abiding motorists,”


“These reforms will crack down on minor, exaggerated and fraudulent claims.”


Is it only me who is appalled by such sweeping statements? Is any of this “just”? Firstly, there is simply no evidence that we have a “compensation culture”. Statistically, the number of claims issued in court in this area is falling year on year, as the Court Service would testify and as the Law Society has pointed out for several years now. We definitely do not have a “rampant compensation culture”. For an example of that, look at the United States experience. Our awards are miserly in comparison, strictly controlled by the Courts and subject to the constraints of a common law system that has developed over centuries. Further, the price of these claims is not a “tax” or “fine” for “millions of law-abiding motorists”. It is payment out of an indemnity under a contract of insurance to cover specific risks, for which the Policy holder has paid a premium agreed in advance with the insurer. That the insurance industry then passes on its perceived increase in overheads to motorists at large is the decision of the insurers and their perception of the obligations they have to their shareholders. What happened to reinsurance and the other ways insurers offset their claims?


However, finally and perhaps most astonishing is the implicit acceptance that a sledgehammer is being used to crack a nut! The changes will only affect “minor” claims (who decides what is minor or not?) and is designed to target only “fraudulent” and/or “exaggerated” claims. In other words, there is an implicit acceptance that at least some of these claims are genuine. If that is right, the wholesale abolition of such claims can never be justified since that would deny genuine claimants’ access to justice? In short, better ways have to be found to prevent such unmerited and exaggerated claims being made rather than restricting access to justice. Perhaps a re-think on the whole “opening up of the market” concept, a euphemism for legislating solicitors out of the equation despite this being the only body bound by rules of conduct that prevent them allowing such fraudulent and/or exaggerated claims proceeding. There is further alarming talk that, were these reforms to come about, the claims falling foul of an increase small claims limit could be conducted by, are you ready, Claims Management Companies and Paid Mackenzie Friends! Leaving aside the obvious point that event these groups have overheads, neither of them is regulated at all. In short, isn’t there an increased risk of fraudulent claims against a background of being unable to regulate or control the sector again in future? Is it only me who sees the absurdity, stupidity and, ultimately, the foolishness of such a “quick fix” proposal? Never mind the access to justice issues. Are we really saying that we stand for access to justice only when it is politically and financially acceptable to do so? That is what this policy clearly states.


Oh, but of course I forgot, access to justice is not something that figures highly on the agenda of this government – silly me! Nothing to do with wanting to cosy up to the insurance industry I suppose? Perish the thought! Don’t come crying to me, Ms. Truss, when Joe Blogs, high on something legal or illegal, drives into the back of you at speed and injures you, even if he is insured in the first place. I’d have to point out that you must be a fraudulent claimant on your own statistics!


Elsewhere on the Confederation front I have been involved in the setting up of a new event, to take place on 12th January 2017 at the University of South Wales in Treforest. This is designed to be the first of regular quarterly meetings open to the profession at large in the Confederation area, to meet and discuss not only issues of importance locally, but also to provide relevant practical help to the profession in our area on points specific to the requirements of practice in our area. We are opening these meetings up to anyone who wishes to attend, not only for the purpose of listening to the speakers we have lined up but also as a forum for the profession locally to influence the way the Confederation develops, what it does for its members and how it can assist practitioners in practical ways moving forward. I am acutely aware that too many local law societies have become moribund in the last 15 years, leaving large numbers of practitioners without an effective voice. If you have issues you feel strongly about, want to raise or which concern you, I urge you to attend. I am please to confirm that our speaker for the meeting in January will be Mr. Viv Williams, one of the UK’s leading consultants to law firms on the topics of strategy, management, practice, development and marketing. In the future we intend to move the quarterly meeting around our area of operations and involve additional speakers as demand dictates. I urge you all to attend.


This has been a somewhat lengthy article. I make no apologies as the main item represents a significant threat not only to our profession but to the rights and remedies of the public at large. They deserve better than this from their government. It remains our duty to oppose such moves.


However, as this is the last edition of Legal News prior to Christmas (frightening thought!), can I extend to you all my best wishes for an enjoyable, peaceful and relaxing Christmas and New Year? I look forward to speaking to you all, somewhere, in 2017.


Nadolig Llawen! 


Jonathan Hine

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