"The current process for selecting and instructing an appropriate medical expert remains inaccessible and unfair to those without prior experience or professional advice."
A medico-legal expert from a leading independent medical reporting organisation has questioned how litigants in person (LiP) will fare ahead of the proposed increase to the small claims limit from £1,000 to £5,000 in RTA cases and to £2,000 in other personal injury cases.
A recent decision by the Supreme Court on 21 February 2018 has shown judges are not willing to provide self-represented individuals with ‘special rules or indulgences’ - stating that defendant lawyers on the other side of a claim brought by a LiP are under no obligation to point out procedural mistakes.
The case of Barton v Wright Hassall, says director of MAPS Medical Reporting David Stothard, highlights the fact that LiPs are not treated differently to a law firm by the complex legal system, despite their inexperience, and the fact that they would be dealing with a professional opponent.
What is the financial impact the proposed increase to the small claims limit will have on litigants?
“The issues for Litigants in Person entering into a personal injury claim without the backing of an independent legal adviser are many, not least for when they intend to instruct a medico-legal expert,” explained David Stothard.
The problems that LiPs face when starting a claim have come into sharp focus following an announcement that the government intends to overhaul the claims process by increasing the small claims limit for all personal injury cases.
MAPS Medical Reporting director David continues: “An increase in the small claims limit will necessarily lead to many more self-represented individuals as many will not be able to front the cost of a lawyer after they’ve been injured – a cost which at the moment is paid for by the other side when they have been at fault.”
When making any type of personal injury claim, it is a legal requirement that a medical expert provides independent evidence to the court. However, according to recent research by a leading legal training company, 76% of experts would not accept instructions from claimants who do not have a lawyer.
MAPS Medical Reporting has previously argued that the system would require a complete overhaul in order for LiPs to be able to understand how to progress a claim through the small claims process.
“It will be incredibly difficult for a lay person to find the right medical expert in the right clinical area of expertise, who specialises in medico-legal reporting and who is able to provide a report of a cost that the court deems “reasonable”.
“This process is made even more complicated when taking into account that many medical experts are clearly not willing to accept instructions from a LiP. As it stands it could become nearly impossible for thousands of individuals to bring claims because they won’t know where to start, and the other side won’t be required to tell them if they make procedural mistakes.”
Without any specialised knowledge or previous experience, the LiP will need to instruct the expert to report on all relevant issues and interpret their findings back to the court. Regardless of the outcome of the medico-legal report, the individual would have to pay the expert and may be required to disclose an unfavourable report to the court if they were to seek a second opinion.
David concluded: “a quality, medical report to support a personal injury claim is absolutely essential – but the current process for selecting and instructing an appropriate medical expert remains inaccessible and unfair to those without prior experience or professional advice.”