Making Claims and Learning Lessons on Using the Internet: British Columbia shows up England and Wales

A new Guide to Making a Claim to small claims relating to road accidents in England and Wales raises some interesting – and, indeed, generally relevant – issues about online provision of portals and assistance. The guide is an online booklet of 64 pages giving information on a new Official Injury Claim online service to be launched at the end of the month. This, in turn, is based on a new ‘Pre-Action Protocol’ of over 100 pages issued by the senior civil judge, the Master of the Rolls. The issue of global concern in this parochial area of the English legal system? What lessons can we learn about using the net to assist litigants – particularly if we compare this English offering with a very similar equivalent from Canada – the British Columbia Civil Resolution Tribunal.

Overseas readers would be well advised not to descend too far into the political and economic snake pit of English and Welsh road traffic claims. All you need to know is that there has been long-standing tension – coming to a head over claims for whiplash injuries – between motor insurers who think that they are being taken for a ride by unscrupulous lawyers; governments which largely agree; lawyers who strenuously don’t; and claimants, rather too many of whom for comfort have been ‘farmed’ by a small industry of claims firms but also a number of whom have suffered genuine injuries difficult to prove. In the background, the progressive cutting of legal aid has forced small traditional ‘High Street’ firms to depend more on their personal injury departments to keep themselves afloat. So, they have been looking to increase the work of their personal injury departments.

Official Injury Claim has been developed by MIB (Motor Insurers’ Bureau) on behalf of the Ministry of Justice. Some care has clearly been taken with the name. It is official in the sense of its approval by the Ministry of Justice. Its own website claims in addition that it ‘independent’. That independence is, perhaps wisely, not repeated in its name. The purpose of the service is ‘to deliver Government policy in relation to road traffic accident related personal injury claims under £5,000, rising to a total of £10,000 for all losses related to the accident (such as loss of earnings and damage to your car and property).’ The scheme will require registration by professional users; it implements tariffs for injuries including whiplash. The evidence of its ‘independent and unbiased’ nature provided on its website is that ‘unlike some other services, we don’t make money from your claim’. Neither would, of course, a body like Citizens Advice which would have the added advantage of not being effectively a wholly owned subsidiary of the motor vehicle insurance industry.

Back, however, to the guide. This ‘is designed to help you make a personal injury claim’. So, the purpose is help self-represented litigants. They will presumably get a measure of reassurance from the fact that it ‘has been reviewed by senior independent counsel to ensure it is both comprehensive and accurate’. There is no claim that the document has been revised by experts in plain English. Wisely. The first two paragraphs begin with conditional clauses ‘if …’. The rest may well meet the requirements of senior independent counsel but it ain’t easily readable by a member of the public. For example, paragraph 4.2 sets out when you will be unable to use the portal. This includes when ‘you are a protected party. A protected party is one defined by the pre-action protocol (see 4.3(g)) as a party or an intended party who lacks capacity to conduct proceedings’. Actually, this is both difficult to follow and technically incorrect. Rule 4(3)(g) says ‘Where the claimant or defendant is a protected party as defined in rule 21.1(2)’ This is a reference to Part 21 of the Civil Practice Rules, another document. Rule 21(2) (d) states that a ‘‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings’. This is not just a smart-arsed quibble. The text does not answer the sort of practically foreseeable question that might arise for an adviser. For example, does an inability to use the internet for whatever reason constitute a lack of capacity to conduct proceedings? Who can tell? The guide is little help.

The point is more serious than an unexplained simplification. It illustrates how the insurers’ guide falls hopelessly between two stools. It purports to help a self-represented claimant to make their way through a portal established by the insurance industry. But, the underlying law is really complicated. The guide is neither advanced enough for a professional reader nor clear enough for non-professionals. And it is nowhere near meeting the communications expectations of the government itself: ‘”GOV.UK guidelines advocate that written content should meet the minimum reading age of 9 years, to ensure it is easily understood. You might consider an adult with additional learning needs or an elderly relative with dementia trying to understand your information.’ It would be impenetrable to someone of that level of ability.

By happy coincidence, we have an alternative approach to contrast information on accident claims. British Columbia’s Civil Resolution Tribunal launched a new ‘solution explorer’ for vehicle accidents on 30 April. It works by providing a series of information sheets that you can download as you proceed through answering a set of questions that define the parameter of your potential claim. The underlying law appears not to be as complex as that of England and Wales. There is a statutory compensation scheme and the opportunities for litigation are limited. But the information is given in reasonable bite sizes and on the web. Users are given a summary sheet of their answers. It is all online and interactive. It is produced by the tribunal and, at the end, leads you to its portal to make a claim. If you have a moment, just follow the link to the solution explorer and the booklet. The 21st century meets the 19th.

So, there appear to be a number of lessons that we can draw here.

The first is the classic ‘identify your audience’ and write for it. A 64 page booklet stuck not the net with a few hyperlinks is not really good enough anymore. The internet requires a more interrogative and interactive approach, as illustrated by the CRT. The motor insurers may be promoting a portal but they have not really drunk the KoolAid of the digital age.

Second, there is nothing wrong with writing separately for advisers. But make sure you do it accurately and well. And make it clear.

The third and fourth lessons may be more contentious and are certainly more political. It is important that advice on the net is independent and the motor insurers are right to emphasise that. Any lawyer would, however, be alert to the potential conflict of interest in one of the parties to a potential dispute blurring into the body that determines it. By contrast, the CRT overtly owns its information. The independence of advice agencies, lawyers and related institutions is to be jealously guarded.

And finally there is the issue of complexity. Clearly, technology can handle complexity. Computers will fly you to the moon.  But, that may not be enough if the process is one which users have also to understand. The treatment of road accident claims raises a lot of difficult issues for government, the legal profession, courts and insurers. The complexity and deficiencies of the insurers 64 page explanatory booklet suggests that the current package is hopelessly complicated and likely to prove unstable. 

 

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