While the pandemic continues to present challenges for both the management and progression of motor liability claims, we delve into some of the wider trends we’ve been seeing that look set to continue this year.
2022 will certainly see litigation arise from cases in the Official Injury Claim (OIC) portal. How will the courts process these cases? What will listing times be? How will hearings be conducted, and how much leeway will be given to litigants in person (LiPs) during a hearing? These are just a few of the many questions that will be answered, at least in part, over the course of this year.
To touch briefly on COVID-19, although we’ve seen a return to in-person hearings alongside remote hearings, the ongoing disruption caused by the virus will inevitably continue for us all in 2022 – claimants, defendants, insurers, listing officers and the judiciary alike. We are now seeing cases being listed for December 2022 in the sub-£25,000 value band.
Volume motor claims
The claimant volume motor market continues to be in a state of flux, with some significant names in this space folding, selling their volume books or leaving the sector. Others will follow and rumours abound on the defendant side also.
Another indication of this instability is witnessing litigation funders starting to exit the market. Along with fewer investors putting money into the sector, recent regulatory change is also contributing to this fall in liquidity.
Chronic health conditions
We are seeing tinnitus and other ‘subjective’ injuries come to the fore, and increasingly their inclusion can propel relatively low-value claims up to the multi-track. Tinnitus alone can very rapidly become a claim worth between £20,000 to £30,000.
Although it’s still relatively early days, we see this trend continuing. These types of claims are all about credibility, and not just in terms of the potential hearing loss and medical history, but also all sorts of other considerations such as social demographic, hobbies and employment.
Intelligence gathering and profiling are key for these types of cases. They involve turning over every stone and looking for any inconsistencies that may harm credibility.
Much of the above about tinnitus applies in chronic pain cases, particularly in the context of credibility and profiling the claimant.
Another trend we are seeing more regularly is claimant solicitors rushing headlong to instruct pain experts, making appointments even, without permission. For that reason, being alert to this and 'marking their cards' vis-a-vis costs and conduct is paramount.
Another curious point about chronic pain cases is that they often coincide with limitation, late service and asking for stays at the end of three years from the date of the accident. This may be where existing medical evidence is kept under the radar and the intention is to obtain pain management evidence before moving ahead.
Functional Neurological Disorder (FND)
We anticipate that Functional Neurological Disorder claims will continue to become more prevalent this year. FND is a complex and not yet well understood condition, for which causes can be dependent on a variety of factors and present a number of potential difficulties for insurers.
Limitation (or the avoidance of it!) are a continuing issue. It seems the issue of a holding set of proceedings and an immediate request for a stay is now becoming common practice for some. In the longer-term we may see this spike dipping down again, although in the meantime we foresee an increase in these situations particularly over the first half of 2022.
In these cases we find that most insurers are willing to grant an extension, which is often preferable to a stay. In pre-litigation stage it is possible to do the equivalent of this by agreeing to reciprocal experts seeing your clients, securing disclosure, sending forms of consent release and the like during this period.
Motor policies are becoming increasingly geared towards the use the vehicle is being put to and the lifestyle of the person using it. Insurers can no longer rely on statutory declarations to reduce their liabilities, which they may have previously counted on to manage a higher-risk policy line. With this option no longer available, a number of different coverage arguments are arising.
Coupled with that, there is a recent trend of insurers being tripped up by the Motor Insurance Database (MID). It would be easy to blame the MID for being too clunky, but more often than not insurers are readily accepting that they need to tighten up their own procedures and processes to actually cancel policies on the database. We see this continuing into 2022, at least until the half year point while processes are tightened.
Fatal accident claims
Finally, turning to fatal accident claims, Chouza v Martins & Ors [22.06.21] has served as a reminder of the wide discretion judges have in how they can approach dependency claims. The ratios are not fixed, however they will apply in the vast majority of cases, subject to obtaining evidence that supports a move away from them.