Guidance

Official Injury Claim (OIC) Advisory Group meeting: 1 February 2024, 1pm to 3pm

Updated 18 March 2024

Applies to England and Wales

Summary minutes and actions: 1 February 2024, 1pm to 3pm

Attendees

• Ministry of Justice (Chair and secretariat) (MoJ)
• Motor Insurers’ Bureau (OIC service operators) (MIB)
• Civil Procedure Rule Committee (CPRC)
• Association of Personal Injury Lawyers (APIL) 
• Motor Accident Solicitors Society (MASS)        
• Forum of Insurance Lawyers (FOIL)                
• Association of British Insurers (ABI)                
• MedCo

Apologies

• HM Courts and Tribunal Service (HMCTS)

Item 1: Introduction

The Chair welcomed attendees and outlined the agenda for the meeting.

The Chair also updated on the actions from the previous meeting:

1. No feedback had yet been received on selection of reasons for exit –members to be reminded;

2. A follow up conversation had taken place regarding the privilege point raised at the previous meeting;

3. Members were thanked for their feedback and additional comments in respect of the roundtable policy points, to be discussed later in the agenda; and

4. MIB and ABI were still to meet to discuss a particular issue raised by an ABI member regarding the selection of exit reasons by claimants.

Action point 1

Members to provide feedback on ‘reason for exit’ selection.

Item 2: OIC data and performance update

MIB provided an overview of the latest quarterly operational data, which was published on the OIC website on 10 January 2024.

A helpful discussion was held in relation to the level of dormant claims, data on which was published for the first time in the January report.

Members felt that this was an operational issue, and that parties may not consider there to be any incentive to formally close a claim which is not going to proceed. MOJ asked for members thoughts on how better housekeeping could be encouraged, as all acknowledged that these claims skew OIC data.

MIB reminded the group that auto-prompts for inactive claims were being implemented in Q3, which might encourage the closing of claims. Members agreed to consider how they could assist, for example including prompts in their regular membership communications.

There was a discussion about whether claims sitting dormant in stages where the claim cannot be recommenced, e.g., “pending withdrawal”, could be archived. It was agreed that MOJ would take this away to consider and acknowledged that access to justice and the practical implications of doing this must be considered.

If, following this archiving, the claimant decided the restart their claim, they would need to begin again. There was a suggestion that, for those circumstances, there could be a version of the SCNF kept somewhere on the system. MOJ and MIB agreed to consider this further.

Action point 2

MOJ and MIB to consider, with discussion with OICAG members, the suggestions raised for dealing with certain dormant claims.

Item 3: Roundtable policy proposals

MOJ gave an update on the four policy proposals on which they had sought additional views and rationale. These were:

• enhancement of the transfer process
• time limit for responding to a liability challenge
• introduction of dispute resolution mechanisms
• time limit for medical report disclosure

MOJ confirmed that 8 organisations responded and provided additional evidence and rationale. Following consideration of these responses and other related data sets MOJ confirmed that one proposal relating to enhancing different aspects of the claim transfer process will be progressed. Specifically, the following actions will be taken:

• Compensator to Compensator Transfers – the automated transfer request process for claims at pre-liability decision stage will be updated during forthcoming quarter 3 OIC update

• Bulk Transfer Process – work between MIB and compensators/professional users will continue in regard to streamlining the bulk transfer process for compensator to compensator and pro user to pro user transfers

• Individual Pro User to Pro User Transfers – no further work will be undertaken on this point at this time but the data in this area will continue to be monitored

• Cross Portal Transfers between OIC and CPL – no further work will be undertaken at this time, but this issue will also continue to be monitored and action in this area may be undertaken at a future date

MOJ also confirmed that no further action would be taken on the other 3 proposals at this time.

Action point 3

MOJ to confirm next steps relating to the four outstanding policy proposals to the wider stakeholder community.

A summary of the MOJ’s response to all the roundtable policy points, originally communicated to OICAG members at the 25 October 2023 meeting, can be found at Annex A of these minutes.

Item 4: Whiplash tariff review

MOJ gave an overview of the upcoming call for evidence to support the Lord Chancellor’s review of the whiplash tariff, as required by Part 1, Section 3 of the Civil Liability Act 2018.

The call for evidence will be run for an 8-week period to enable statutory deadlines to be met. Due to these deadlines, it will not be possible to grant extensions, so MOJ encouraged all those with an interest to respond and be prepared to do so quickly.

There was a suggestion that focus should be on use of the tariff by professionals, as the proportion of claimants who are unrepresented is low. MOJ acknowledged this, but also reminded members that actual numbers of unrepresented claimants are notably higher than pre-reform, and whatever the proportions, the tariff must be navigable by all those who need to refer to it.

Item 5: MOJ commitments to the Justice Committee

MOJ gave an overview of the Government’s response to the Justice Committee’s inquiry into OIC and the Whiplash Reforms and asked for any member views on key considerations in taking forward the commitments made.

A brief discussion was held on ensuring that OIC was sufficiently visible to and accessible for unrepresented claimants, and there was a suggestion that MOJ or OIC could signpost to external resources. MOJ agreed to consider this and encouraged members to share any suggestions.

Action point 4

Members to share any additional resources which they think unrepresented claimants should be signposted to.

Item 6: Member feedback

MedCo flagged some upcoming roundtables with the medical evidence sector, and that they would report back at a future meeting.

ABI raised a proposal, also made at the OIC roundtables, regarding the ability to choose where to issue a court claim. MOJ confirmed that this had been considered and will not be taken forward. MOJ agreed to write to ABI to confirm their position.

A member raised a concern about an incidence of possible misinterpretation of PD27B at court, regarding the requirement to only issue one set of proceedings for a matter. It was agreed that further details would be shared with the CPRC member, who would consider whether there was a training or guidance need to be addressed.

Action point 5

MOJ to confirm the position regarding issuing of claims at specific courts with ABI.

Action point 6

Members to share information on issuing more than one set of proceedings.

Item 7: Next steps and AOB

The MOJ summarised the actions arising and next steps, and confirmed that:

• the minutes will be circulated to members for approval before publication on GOV.UK
• the next meeting is scheduled for Thursday 18 April 2024

Annex A: Stakeholder roundtable policy proposals – MOJ response, October 2023

Number	Proposal	Response	Decision / Action
1.	Counsel fees to be recoverable (raised by claimant representatives).	The Small Claims Track is a non-costs-bearing environment and there would need to be a high threshold for making such a change which would fundamentally change the SCT into a costs-bearing environment.	Having considered this proposal, MoJ do not agree that the case for change has been made and no further action will be taken.
2.	A time limit for responding to a challenge to a liability decision (raised by claimant representatives).	Further information was sought from stakeholders to evidence why this is change required. Following this exercise MoJ did not receive any new compelling evidence to support the contention that compensators are not responding in a timely manner in such circumstances and that change is required.	No further work will be undertaken on this point at this time but the data in this area will continue to be monitored.
3.	The ability to go to court with liability and quantum disputes concurrently (raised by claimant representatives).	This would be a fundamental departure from the process set out in the RTA Small Claims Protocol (“the PAP”), whereby a liability decision must be taken first, followed by negotiations on quantum once medical evidence has been received. Liability and quantum disputes are therefore resolved via separate applications to the court and are two different court processes. Such a change would require changes to both the PAP and Practice Direction 27B (PD 27B), and it is difficult to justify merging these two court processes, especially considering potential wider implications for other types of claims. There would also need to be an additional change to the claim process set out in the PAP for unrepresented claimants, who must wait until they receive a liability decision before obtaining medical evidence. Furthermore, progressing the quantum aspect of a claim whilst there is still the possibility that the defendant will be deemed not liable for the accident would run against the spirit of the whiplash reforms, which seek to ensure that compensators only pay out for legitimate claims for which their customers are liable.	We do not consider that there is sufficient evidence to justify such a fundamental departure from the PAP and PD27B and no further action will be regarding this point.
4.	Represented and unrepresented claimants to follow the same medical evidence process (raised by compensators/defendant representatives).	There are detailed considerations to be made in regard to this proposal. It is also a point already under consideration and is one of the questions in the recently closed MoJ consultation on the medical reporting process.	No further action will be taken on this point until the Government response to the ‘Revisions to the Medical Reporting Process for Road Traffic Accident Claims’ consultation has been published.
5.	Further enhancement of the transfer process (raised by compensators/defendant representatives).	This includes the transfer of claims between different compensators, the transfer of claims between different pro users, the bulk transfer of claims for compensators and pro users and the transfer of claims between OIC and CPL. There are different issues affecting whether it is appropriate to make changes to these transfer functions. We agree the compensator-to-compensator transfer and the bulk transfer processes should be improved. However, the case for improving other types of transfer process is not as compelling.	The automated compensator transfer request process (for pre-liability claims) will be updated during the quarter 3 2024 OIC update; the bulk transfer process will be streamlined for compensator to compensator and pro user to pro user transfers; work to improve the individual pro user transfer process or the OIC to CPL transfer process will not be taken forward but both will continue to be monitored.
6.	The ability to update liability at any time (raised by compensators/defendant representatives).	This would be a fundamental departure from the small claims PAP and we have not been provided with evidence that compensators wishing to change their liability decision is a common occurrence, thus requiring a change to rectify the issue.	No further work will be undertaken on this point.
7.	The ability to state MID identification rather than needing to obtain a full statement of truth from the defendant (raised by claimant representatives).	The requirement for a statement of truth (SOT) from the defendant is set out at 6.18 of the PAP. MID results and SOTs do not contain the same information and have different purposes, and as such one cannot be substituted for the other. Where the parties litigate, the SOT is part of the evidence to the court and helps to protect unrepresented claimants who may need to litigate.	No further work will be undertaken on this point.
8.	The ability to log complaints about claimants (raised by compensators/defendant representatives).	OIC is a neutral service to facilitate communications between parties wishing to negotiate a settlement, and as such does not (and should not) directly handle complaints about parties to a claim or act in any way as an arbiter. Parties can communicate via the service, and if they consider behaviour or practice of a professional user to fall below the standard expected then they should contact the relevant regulator. Where the complaint concerns the conduct of an unrepresented claimant, the court is the arbiter.	We don’t consider that any change to existing mechanisms is needed here and therefore no further work will be undertaken on this point.
9.	Auto-prompts for lack of activity (raised by compensators/defendant representatives).	We agree that this would be helpful, to encourage parties to either progress or withdraw/remove the claim in circumstances where there has not been activity for some time.	We are already in discussion with MIB about implementing this in OIC, and further detail will be provided in due course.
10.	Introduction of a rule that the defendant must be provided with an update if a claim has been inactive for 12 months, so that the compensator can remove it (raised by compensators/defendant representatives).	A prompt to provide an update could be considered as part of the work on auto-prompts referenced above. However, we do not currently consider that sufficient evidence has been received to justify mandating the provision of an update or giving compensators the ability to remove a claim in such circumstances, particularly as this would require changes to the PAP and/or other legislation. A compensator removing a claim simply because it has been inactive for 12 months would also run counter to the Limitation Act 1980, which sets the limitation period for personal injury claims as three years. This is the time period after which court proceedings cannot be commenced without special dispensation from the court. A claimant has the right to wait for the entirety of those three years, and indeed leave their claim inactive in the process. It is for this reason that a claim being inactive is not included in the list of reasons for which a compensator may remove it from OIC.	We will consider the first part of this proposal as part of the work to implement auto-prompts for lack of activity, but no further work to enable compensators to remove claims for inactivity will be taken forward.
11.	A function whereby the court form can be auto populated with the court of choice based on postcode (raised by claimant representatives).	The build of this functionality would be complex and would need different pathways for different disputes; for example, for represented claims the appropriate court for liability disputes would be the one local to the claimant’s home as oral evidence is likely to be required, but for quantum it would likely be the court local to their solicitor. Given that claim forms are submitted to the Civil National Business Centre (CNBC) in Northampton, who then issue them accordingly, we can’t see, on the current evidence, that building this automation would have a notable benefit. An increase in the number of claims going to courts which would not ordinarily receive them could also impact on waiting times.	No further work will be undertaken on this point.
12.	The ability to submit medical evidence even when the compensator has denied liability (raised by claimant representative).	This is a proposal that has been raised by claimant firms on previous occasions, arguing that it would hasten settlement by avoiding a lengthy liability dispute; in cases where the medical evidence indicates a minor and relatively short injury and therefore a small amount of damages, compensators could be convinced to change their original decision and then settle. This proposal would run directly counter to the reform objectives to reduce the disproportionate number and cost of whiplash claims; compensators should not be encouraged to pay out on claims where they deny liability, even if the amount of compensation is relatively minor. Further, medical evidence is primarily obtained to support the court, and it being of help at pre-action stage cannot outweigh this. Claimants can already use any medical evidence they might have as part of a liability dispute, but it is not appropriate to use it to force a settlement where one may not be appropriate.	No further work will be undertaken on this point.
13.	Introduction of dispute resolution mechanisms, as an alternative to going to court (raised by claimant representatives).	We do not currently consider this change to be warranted, given the existing functionality of the service and potential future modernisation work. It was originally intended that a bespoke dispute resolution method would be built into the OIC for unrepresented claimants. However, funding and significant provider capacity issues led to the introduction of the PD27B approach. However, additional evidence was sought from stakeholders on this point, but no new evidence has been provided to suggest that it’s required. Therefore, given the availability of the PD27B process, the additional negotiation options integrated into the OIC process such as the ability to make three offers/counteroffers, and the potential additional support from the HMCTS small claims mediation, we do not believe the case has been made to justify the development of an additional dispute resolution scheme for OIC claims. It should also be noted that the Government intends to introduce integrated post-issue mediation for unspecified money claims in the future, following its implementation for specified money claims. This will of course, though, only apply to claims which leave OIC for court.	We do not currently consider this change to be warranted, given the existing functionality of the service and future reform. Therefore, no further work will be undertaken on this point at this time.
14.	Punitive costs for unreasonable conduct (raised by claimant representatives).	Claims which start in OIC are small claims track claims, which means that they are brought in a non-costs-bearing environment. However, a court can award punitive costs where it considers a party’s behaviour warrants it (PD27B s.1.13), and courts are experienced in making these decisions. Such a change would also fundamentally change SCT principles and undermine the increase of the small claims limit which was a core part of the reforms.	No further work will be undertaken on this point.
15.	A requirement for the claimant to disclose the first medical report before obtaining further reports (raised by compensators/defendant representatives).	Whilst we can understand why a compensator would not want to pay for medical reports before understanding whether they’re required, secondary reports recommended by the expert providing the initial report must be justified and this can be challenged via the courts if required.	No further work will be undertaken on this point.
16.	A time limit for disclosure of a medical report (raised by compensators/defendant representatives).	Additional information on this point was sought and only limited support from stakeholders for such a change was received. It is a fundamental principle that claimants can legitimately withhold evidence for a variety of reasons if they wish to, and whilst we understand that this can be frustrating for compensators, we can’t see that this outweighs the claimant’s right to progress their claim how they wish. Therefore, based on the information received, we do not believe this to be practicable. This point was also raised by stakeholders in response to the Medical Reporting consultation, and it is more appropriate to consider any action in the area of medical reporting via this route as there is a wider evidence base to consider.	No further action will be taken on this point, but consideration will be given to responses received to the ‘Revisions to the Medical Reporting Process for Road Traffic Accident Claims’ consultation on this point.
17.	A time limit for arranging a medical appointment (raised by compensators/defendant representatives).	We acknowledge that there is a risk to the claimant of either making an appointment too early or waiting too long to obtain medical evidence. Such evidence may be of lower quality if their injuries have not settled or have healed quickly, but ultimately the claimant has a right to determine when an appointment is arranged. We also don’t consider that this would be a helpful change as there could be various reasons (e.g., availability of an expert) why a claimant may not be able to meet a deadline if introduced.	No further work will be undertaken on this point.
18.	A requirement for there to be at least one response to a counteroffer before court proceedings is issued (raised by compensators/defendant representatives).	We don’t consider that this would have a positive impact on avoiding court proceedings. If a claimant has made a counteroffer which is so far apart from the compensators initial offer as to prompt them to commence proceedings, it seems unlikely that a further offer would avoid those proceedings. Where parties are closer together with their offers, negotiation is more likely to be effective.	No further work will be undertaken on this point
19.	The ability for the claimant to make the first offer (raised by claimant representatives).	Whilst we know that this is the process in Claims Portal, the OIC process and the PAP have been designed so that this is explicitly not the case. The PAP process was designed this way largely to protect unrepresented claimants from making unrealistic offers; it was felt that requiring the defendant – with greater experience - to make the first offer would keep negotiations more proportionate. The claimant making the first offer would also likely be much more beneficial to represented than unrepresented claimants, and such a differential in benefits would be problematic. The OIC messaging facility can also be used if a compensator is seeking an early indication of what the claimant may be seeking.	No further work will be undertaken on this point.
20.	The ability to issue a court claim in a local court, rather than CNBC (raised by claimant representatives).	The decision was taken to have court claims submitted to, and issued by, a Business Centre because this was a new court process. This, coupled with a likely change in fee income as a result of the increase in the SCT, meant that centralised, easily accessible data was required in order for MoJ and HMCTS to understand the impact of the reforms. HMCTS are due to report to MoJ on the outcomes of their operational impact review, and all aspects of the court process for OIC claims will be considered as part of that.	Further consideration of this point is underway and discussions with HMCTS will continue.
21.	The ability for the claimant to withdraw a claim due to complex issues of fact or law (raised by claimant representatives).	This is not an option available to a claimant/their rep when choosing a reason for withdrawing their claim; it is only available as a reason for a compensator removing a claim. A claim is argued on the basis that the claimant has been injured and due to the fault of another driver, so there are in theory no issues of real complexity for them to consider when bringing a claim. The defendant insurer must investigate the circumstances of the accident before coming to a decision on liability, and this is where they may discover complex issues which in turn may lead to the claim needing to be heard in a different track. This process is in line with the original RTA PAP.	No further work will be undertaken on this point.
22.	Annexes C & D to be autogenerated when issuing court claim (raised by compensators/defendant representatives).	We agree that this would be sensible, and we will discuss the feasibility of doing this with MIB.	We will explore this proposal with MIB.