As we move out of the acute phase of lockdown’s impact on personal injury litigation (the almost overnight transition to remote working and mass adjournments) and start to adjust to new working practices that are likely to be with us for some months, it is worth considering what the future holds in the longer term. Of course, we know that there is a backlog to be worked through and the courts do seem to be getting to grips with remote hearings, although they are still having to list well below previous capacity. But what is happening to new claims?
Management Information provided by the Claims Portal company (available here) shows that there was a sharp drop in April and particularly May 2020 in the numbers of CNFs being sent. This could be the effect of solicitors who have moved rapidly to remote working struggling to obtain and process new instructions. However, most of these low value claims are litigated without face to face meetings between clients and solicitors and this would not explain the further fall in May 2020.
A more likely explanation is that there have simply been fewer accidents as a result of lockdown. Fewer people are physically present at workplaces, reducing the scope for accidents leading to employers’ liability claims. During the strictest part of the lockdown drivers were only permitted to venture onto the roads for very limited purposes. The further fall in May, as some measures started to be relaxed, could be explained by the natural lag between accidents occurring and people instructing lawyers. If that is correct, it is not yet clear whether the numbers will fall further in June, or if we will now start to see the effects of lockdown easing in a gradual increase in CNF numbers.
There certainly is evidence that the number of road traffic accidents has started to increase as lockdown has been eased. Co-op Insurance reported this week that motor incidents have increased by over a third in the last few weeks and that collisions with cyclists have doubled. They cite research which indicates that some motorists have started driving more in the last month, many of them because they are avoiding public transport in the current health crisis. Co-op also speculate that the reason for the increase in accidents may be related to drivers being out of the habit of driving regularly.
What does seem to be clear is that even though the overall numbers of accidents have decreased, especially the low value accidents that are captured in data relating to CNFs, serious accidents have continued to occur. Anecdotally I, and other colleagues, have heard reports from insurers that the number of serious accidents has not significantly fallen. There is also evidence of serious incidents of speeding in lockdown. While the number of people caught has dropped, the extent to which those caught have broken the limit has increased. Perhaps those with little regard motoring laws were similarly not impressed by the need to comply with lockdown!
Of final note, MedCo confirmed on 12 June 2020 that the ban on remote video medical examinations will remain suspended until further notice. The full guidance is available here. Of course the increased opportunity for fraud is a concern, and interestingly MedCo’s guidance requires legal representatives to ensure claimants are aware of “the fact that there may be a higher risk of a compensator challenging the report”. However, it is not uncommon for Defendant’s to argue that the medical reports in whiplash cases are little more than the Claimant’s account of subjective symptoms which is only as good as his credibility. Video medical examinations will at least keep cases progressing under the current circumstances.