EWJ June 2024 web - Journal - Page 15
parties to the case should bear in mind that Article IX
of the Bill of Rights 1689 applies to the Committee’s
proceedings and so not make reference to this
evidence in the ongoing case.
Current Supreme Court case
The methodology for calculating damages for mixed
injuries, which represent around two-thirds of claims,
was the subject of a test case in 2022, which led to the
Court of Appeal’s judgment on 20 January 2023 in
the case of Yoann Samuel Rabot v Charlotte Victoria Hassam and Matthew David Briggs v Boluwatife Laditan (Hassam and Briggs). The question considered by the Court
was:
The Official Injury Claim portal
The Official Injury Claim (OIC) portal is a free and
independent online service operated by the Motor Insurers’ Bureau (MIB) on behalf of the MoJ. It has
been designed to support individuals who have suffered minor injuries arising from an RTA to claim
compensation, without the need for legal help. Examples of minor injuries include soft tissue injuries
(whiplash), bruising and minor fractures. The portal
allows claimants to raise and settle their own personal
injury (PI) claims without the need to take court action. A maximum injury value of £5,000 may be
claimed for using OIC, and the total value of the claim
must not exceed £10,000 (when including additional
expenses such as loss of earnings).
How is the court to assess damages for pain,
suffering and loss of amenity (“PSLA”) where the
claimant suffers a whiplash injury which comes within
the scope of the 2018 Act and attracts a tariff award
stipulated by the Whiplash Injury Regulations 2021
(“the Regulations”), but also suffers additional injury
which falls outside the scope of the 2018 Act and does
not attract a tariff award?
In March 2023, the Supreme Court received a
permission to appeal application in the case of Hassam
v Rabot, and in June the Court granted leave to appeal. The hearing is likely to take place in early 2024.
Claims data produced by the MoJ up until 30 June
2023 showed that, since its launch in May 2021,
568,214 claims had been submitted via the portal. Of
these, 56,064 (10%) claims were brought by unrepresented claimants, whilst 514,150 (90%) of claimants
had legal representation. 130,048 claims have been
settled since the launch of the service. In addition,
there is a cohort of claims which have settled but not
yet fully progressed through the portal. These are referred to as ‘open’ settlements, where users have not
yet completed the portal journey by confirming the
claim is complete. There are currently 16,578 open
settlements in the system.
The effect of the current Supreme Court case is that
the sub judice resolution of the House of Commons is
engaged.4 The resolution codifies the established
principle that both Houses abstain from discussing the
merits of cases that are subject to live court proceedings. The purpose of the resolution is to ensure the
rights of parties in legal proceedings are not prejudiced by discussion of their case in Parliament, and to
maintain the principle of comity—that Parliament
should not trespass on the court’s jurisdiction. The
1999 Joint Committee on Parliamentary Privilege
explained it in the following terms:
72,141 claims have exited the portal for a reason other
than settlement since its launch.6 Claims can exit the
portal for a number of reasons, including being removed (when they have been taken out of the service
by the compensator) due to the compensator believing
the overall claim is more than £10,000, because the PI
claim is over £5,000, because of complex issues of fact
or law, because a formal allegation of fraud has been
made, because there remains a dispute relating to causation, or because an agreement has been reached
outside of the service. Other reasons for claims exiting
the portal include claims being withdrawn, liability
being rejected, or claims going to court.
It is important that a debate, a committee hearing, or
any other parliamentary proceeding should not prejudice a fair trial, especially a criminal trial. But it is not
only a question of prejudicing a fair trial. Parliament
is in a particularly authoritative position and its proceedings attract much publicity. The proper relationship between Parliament and the courts requires that
the courts should be left to get on with their work. No
matter how great the pressure at times from interest
groups or constituents, Parliament should not permit
itself to appear as an alternative forum for canvassing
the rights and wrongs of issues being considered by
the judicial arm of the state on evidence yet to be
presented and tested.
The latest OIC claims data for the period 1 April to
30 June 2023 provided a breakdown of claims submitted. A total of 66,741 claims were submitted via the
portal, of which, 59,154 (88.6%) claims had legal representation, whilst 7,587 (11.4%) were unrepresented
claims. Of the represented claims, 75.7% were
brought by a UK law firm, 24% by Alternative Business Structures (regulated legal services businesses
owned by non-lawyers) and 0.3% by claims management companies and ‘other’. 26,997 claims were
settled during this period.7
Given that some of the witnesses the Committee
would have intended to call to give oral evidence are
parties to the case of Hassam v Rabot to be heard by the
Supreme Court in early 2024, and the centrality of the
treatment of mixed injury claims in assessing the overall implementation of the whiplash reform programme, the Committee has decided to pause its
inquiry until the Supreme Court has ruled on the
case. In the interim, we nevertheless wish to raise some
concerns in relation to the operation of the OIC service to date, which were highlighted in the written evidence we received, and which we have set out in the
remainder of this Report. We have also published the
written evidence to the inquiry. We note that these are
Parliamentary Proceedings, and that just as we are
pausing our inquiry in respect to the Supreme Court,
EXPERT WITNESS JOURNAL
The table (next page) shows the number of claims submitted, the number of claims settled, and the average
number of days taken to reach settlement, per reporting period, since the launch of the OIC service:
Use of the OIC portal by litigants in person
In its written evidence the MoJ said “OIC is an
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JUNE 2024