All I want for Christmas is... an update on the November portal data, new OIC data release and latest Civil Justice Statistics

We started 2021 eagerly anticipating the publication of the PAP and practice directions for the whiplash portal and implementation of the reforms. But the launch of the new portal at the end of May really was just a staging post on the journey. We always knew the issue of additional injuries would be the biggest threat to reducing both claims frequency and severity, and it is still too early to say whether the Court of Appeal might start to consider the test cases during 2022. 

We now have the data from the OIC, covering the period up to the end of November 2021. 

Headline figures are that in the period 1 September to 30 November 2021, 68,359 claims were presented with 42,131 liability decisions made. The number of claims presented is up 49.5% on the previous quarter, and this quarter the statistics are broken down so we can see the rise each month. September saw 21,569 submissions, October 22,140 and November 24,650. 

Claims frequency

We have combined the MOJ and OIC data here to try and show overall claims frequency. This shows around 35,000 claims presented in November, and we shall have to see if that continues to rise or has stabilised now that we are six months into the new portal.

The key question however remains: what is the right "pre-OIC" benchmark to measure frequency against...? The November figure represents only around a 10% drop against the six-month pre-OIC average, but that was during the summer months when one would expect fewer accidents due to better weather and longer daylight hours, and it was a period marked by Covid restrictions which were ultimately lifted in July 2021. The period from September to November 2021 is over 20% down when compared to the same period in 2020:

Representation

Turning to the split between represented and unrepresented claimants, still around 90% of claimants are represented in the OIC, and a lot of those labelled as unrepresented will actually be successful interventions on the part of insurers. So the number of true unrepresented claimants choosing to use the portal rather than go via a solicitor is likely to be much lower:

 
Turning to the type of firm that is representing claimants, the CMC figure remains very low indeed at present:

 
Our own analysis of route-to-market in the OIC compared to the MOJ portal is hopefully a bit more illuminating. What it shows is that the MOJ is the portal of choice for AMC and farmed claims, with ABS/LEI claims much more likely to be submitted via the new OIC. This highlights the need for a real technical focus on the MOJ portal claims which have an even greater propensity for fraud, layering and claims farming. It appears that a significant number of claims are being presented in the MOJ which should have been submitted in the OIC portal, and we are supporting insurers with the resultant costs and conduct issues. 

Liability decisions and exits

The number of liability decisions made has risen, as more claims now fall outside the 30 day decision period. The proportion of liability-admitted claims is higher for unrepresented claimants, which you would expect to see, as many of them have been routed through insurer intervention. In represented cases the percentage of disputes is 81%, v 94% in unrepresented:

 
Causation was disputed in only 4% of the claims, but this figure may rise over time, especially in the context of the plausibility of the type of injuries being presented in the OIC. 

The reasons for exiting the process are as follows:

 
The OIC has provided a breakdown of the reasons why claims have exited the OIC for reasons excluding settlement. Moving forward, they will tell us at which stage the claim left the OIC, which will be useful for our analysis. 

The broad categories for claims leaving the OIC process are as follows: removed by compensator, withdrawn by claimant, rejected liability, and court proceedings issued. 

As we can see from the illustration above, only three claims exited because court proceedings had been issued, and perhaps surprisingly, all of those claims were from unrepresented claimants. We are told by insurers that they are still seeing very low litigation volumes, certainly much lower than we would have expected by this stage in the claims lifecycle.

The first thing to note is that a number of claims which settled outside the OIC process have been included in these figures. 5% of unrepresented and 9% of unrepresented claims respectively have settled, which increases the overall claims settled figure this quarter by 239, from 3,468 to 3,707. 

The owner of a claimant law firm recently explained the technical issues some firms were having when uploading medical reports to the portal. We understand that a number of claimant firms have attempted to get around this by e-mailing the medical report to insurers outside the OIC for settlement offers. Given this development and the fact that the reason for a claim exiting is self-reported, we may find that the overall number of settled claims is being under-reported. 

As well as providing the broad categories for exit, we are also provided with subcategories which give more detail of the reason for exit. This combines the claims which have been withdrawn by claimants and those removed by compensators. 

Looking at this detailed breakdown, we can see that of the removed/withdrawn claims for represented claimants the majority leave the process because of complexity (49%). The second most common reason is an allegation of fraud (17%). Duplicate claims account for 7%, and 3% of claims leave because the claimant no longer wishes to continue. It might be assumed that all the claims which leave for complexity have been removed by insurers as the protocol makes it clear that claimants can only withdraw claims if they do not meet the criteria for the OIC and/or they wish to withdraw the claim entirely. Despite this, we have seen several claims where the claimant's solicitor has withdrawn the claim for complexity. This is typically when liability has been repudiated in full, and they do not want to follow the OIC process to resolve the claim. At the moment, because withdrawn and removed claims are merged for the purpose of the breakdown, we don’t have a clear line of sight on this.

Additional injuries and exceptional circumstances

The data continues to show a significant number of non-tariff injuries being presented. Alarmingly only 33% of claimants in the portal are claiming tariff only injuries according to the OIC data. This definition includes minor psychological injury. The figure of 33% has been consistent in both the first and second quarter. The OIC has provided more information in respect of the breakdown of the non-tariff (excluding mixed tariff) injuries this quarter, and we can see that 4% of claims have no tariff element at all. We will be tracking the volumes of these claims moving forward, especially as we move closer to a decision in respect of the additional injury test cases.

 
As many as 23% of represented claimants are claiming an uplift for exceptional circumstances, and that figure nearly doubles to 41 % for unrepresented claimants. This of course raises questions of how to define exceptional? Clearly, 23% of all claims cannot be exceptional, and certainly not 40% plus. The good news for compensators is that it appears the medical experts are in agreement, as many of these claims for uplift are not endorsed by the medical report itself.

MedCo data for September to November 2021 has also been released. The overall number of selections shows a similar pattern to the number of claims overall, reflecting our comments on claims frequency above.

The data also shows that unrepresented claimants are far more likely to choose a direct expert, whereas represented claimants will generally choose an MRO. 

Then we can see that where a direct expert is instructed, an unrepresented claimant is overwhelmingly likely to use a GP (95%). For represented claimants, the choice is fairly evenly split between physiotherapists and GPs. 

We understand that Part 2 of the MOJ's response to its consultation on whiplash claims, which is likely to cover credit hire and rehabilitation, is expected in early 2022. The content of the response may lead to further disruption in the motor claims arena, although given the MOJ last consulted on the issue in 2016/17, it is unlikely they will be able to do much without further consultation.

On the subject of civil justice, speaking at an event organised by ACSO, Justice Select Committee chair Bob Neil said that civil justice is "nowhere near high enough up the agenda", and that the UK missed an opportunity when it failed to include ADR in the OIC portal. Following that event, ACSO called on ministers to speed up their current investigation into dispute resolution. 

The latest civil justice statistics have been released covering the period July to September 2021 which was the cause of the concern raised by ACSO above. Whilst there has been a general decrease in 'traffic' through the courts, with the number of County Court claims down 27% on the same period in 2019, the time taken to trial has increased again across all tracks. 

The problem of late adjournments is still very much an issue as well despite a backdrop of 24% fewer cases proceeding to trial than in 2019. 

As can be seen here, the mean time taken for small claims to reach trial in 2021was 50.5 weeks, 13.3 weeks longer than in 2019:

 
For fast and multi track claims, this increased to an average of 70.6 weeks, up 11.3 weeks on 2019:

There have been increases in all areas, including the time between issue and allocation, then allocation through to trial. Against a backdrop of mainly virtual and telephone hearings, it seems the technological advances have not helped as much as envisaged. Perhaps issues with the numbers of district judges and administration staff have had more of an impact.

The only consolation for now, is that whilst the annual figures show the alarming trend over the last 3-4 years, the quarterly figures seem to have stabilised – i.e. the position isn't continuing to worsen…
Most of the anticipated reforms for 2022 focus on costs and alternative dispute resolution, which given the above, is no surprise.

In November, the Civil Justice Council issued an interim report simultaneously launching a formal consultation on the role of pre-action protocols, including their role in an increasingly digitised civil justice system. The report canvases a number of options for reform to the Practice Direction Pre-Action Protocols and the creation of new PAPs in some areas. The closing date for comments has just been extended by four weeks to 21 January 2022.

Key proposals canvassed include:

• The introduction of a "good faith obligation".
• A requirement to complete a joint stocktake report.
• The introduction of a summary costs procedure.

Highway Code

The amendments to the Highway Code that we have discussed previously have now been laid before Parliament, and the plan is for them now to come into force from 29 January 2022, as revealed in correspondence from the DfT's Baroness Vere to Transport Select Committee chair, Huw Merriman on 1 December. In the past week, the House of Lords Secondary Legislation Scrutiny Committee has emphasised the need for clear messaging around the changes, especially for those groups that do not habitually consult the Highway Code. 

To recap, the detailed changes give effect to the 'Hierarchy of Road Users' which is a concept that places those road users most at risk in the event of a collision at the top of the hierarchy. As the proposed code states:

"Everyone suffers when road collisions occur, whether they are physically injured or not. But those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others. This principle applies most strongly to drivers of large goods and passenger vehicles, vans/minibuses, cars/taxis and motorcycles. Cyclists, horse riders and drivers of horse drawn vehicles likewise have a responsibility to reduce danger to pedestrians. None of this detracts from the responsibility of ALL road users, including pedestrians, cyclists and horse riders, to have regard for their own and other road users' safety."

Electric scooters

Trials of e-scooters started in 32 areas in July 2020 and were originally intended to run until August 2021, with the government then expected to review the data from those trials before deciding upon next steps. 

At the end of November, the DfT produced its latest e-scooter fact sheet containing data showing an upward trend in reported casualties involving e-scooters from January 2020 to June 2021. 

In the year ending June 2021, there were 882 accidents involving e-scooters, and of these, 173 were single-vehicle accidents. There were 931 casualties in accidents involving e-scooters. Of these, 732 were e-scooters users, and of the 931 casualties, three were killed (all of them were e-scooter riders). There were 253 seriously injured and 675 slightly injured casualties. 199 serious injuries were sustained by e-scooter users, with 37 pedestrians and 14 cyclists also being seriously injured by an e-scooter user.

The majority of e-scooter user casualties were aged 10-29, whereas non-e-scooter user casualties were much more evenly spread.

The trials have however now been extended until March 2022, so it will be some time yet before we have any clear outcomes in terms of insurance requirements, where e-scooters can be ridden, and indeed where they might fit in the Highway Code hierarchy referred to above.  

Whilst on the subject of electric vehicles, the Society of Motor Manufacturers and Traders reported that 115,706 new cars were registered in November (31.3% below the pre-pandemic five-year average) and plug-in cars represented 28.1% of the market in November, with 21,726 battery electric vehicle registrations and 10,796 plug-in hybrids. A sign of things to come no doubt…

Lugano Convention

On 18 November, the European Parliament Think Tank published a briefing on the UK's possible re-joining of the 2007 Lugano Convention. The briefing discusses the impact of Brexit on the UK and the Lugano Convention, the UK's bid to re-join the convention, as well as whether the EU will join the HCCH 2019 Judgments Convention, and what this might mean if the UK also joined, among other things. 

It notes the European Commission view that participation in the Lugano system should not be offered to any third country that is not part of the internal market. With the French taking the EU presidency in 2022, little progress is expected to be made and it appears extremely unlikely the UK will re-join next year. This means proceedings relating to cross-border incidents will mostly be made in the country where the accident takes place except in rare circumstances where forum conveniens will provide a choice to issue elsewhere. 

Vnuk

Peter Bone's private member's bill, the Motor Vehicles (Compulsory Insurance) Bill, passed its second reading on 29 October and will now proceed to review by a Bill Committee. No date has been set as yet for the committee stage, but it will appear on the Bill's webpage in due course. This bill may be the best chance of significant change in the near future.

Somewhat ironically, in November, the Presidents of the European Parliament and Council of the European Union signed off the amendments to the Motor Insurance Directive designed to address the issues arising out of Vnuk and subsequent CJEU decisions. The definition of "vehicle" in the Directive has been amended to:

(a) any motor vehicle propelled exclusively by mechanical power on land but not running on rails with:
(i) a maximum design speed of more than 25 km/h; or
(ii) a maximum net weight of more than 25 kg and a maximum design speed of more than 14 km/h;
(b) any trailer to be used with a vehicle referred to in point (a), whether coupled or uncoupled.

Without prejudice to points (a) and (b), wheelchair vehicles exclusively intended for use by persons with physical disabilities are not considered to be vehicles referred to in this Directive;

And use of a vehicle has been defined as:

1a. "use of a vehicle" means any use of a vehicle that is consistent with the vehicle's function as a means of transport at the time of the accident, irrespective of the vehicle's characteristics and irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion;'

According to the latest claims benchmarking data from Willis Towers Watson (WTW), published this week, the average motor claim now stands at £5,380, showing that payouts have increased by 6% during the first six months of this year.  The research showed that motor claim volumes were low during the Covid pandemic, but the cost of these claims rose. 

A key factor behind this surge is cyclist accidents. WTW head of claims consulting, Tom Helm said: "The proportion of claims that were hit-in-rear accidents fell sharply by seven percentage points, despite previously accounting for about 21% of all UK claims." Meanwhile, cyclist claims, which are typically more costly but low in volume, more than doubled their normal share of the overall claim numbers in the same period.

This House of Commons briefing note published last week is a reflection on data from 2020 but bears that out and shows that in 2020 the number of cyclists killed or seriously injured increased whilst the figures for all other road users reduced significantly in line with the reduction in traffic:

 
Interestingly, the report also analysed the time of day accidents occurred and noted that in percentage terms, the largest fall in accidents was between midnight and 5 a.m., and 8 a.m. to 9 a.m.

During those hours, there were over 30% fewer accidents in 2020 than in 2019. By comparison, the number of accidents between 11 a.m. and 3 p.m. and between 7 p.m. and 10 p.m. was within 20% of 2019 levels. Whilst accidents remained most common between 3 p.m. and 6 p.m., the reduction in rush hour traffic has clearly had an effect upon accident frequency and will continue to do so:
 

We have the transport data up to 13 December 2021, so just after the 'work from home' guidance came in again. As a result, the effect has not yet translated in data terms but no doubt will in the next data set as traffic levels are dropping. All vehicle usage was at 96% of pre-pandemic levels on 6 December and 13 December, for example. 

 
Tube usage, which has never fully recovered, has already started to reduce, from 56% on 6 December to 52% on 13 December for example:
 

Returning then to the MOJ portal data, we have two months of data to analyse due to a fallow month last month, remembering that as discussed above, the RTA data benefits from being read together with the Q2 OIC data to make sense of the overall picture.

New RTA claims 

New CNFs dropped again in October and November to 10,133 and 9,900 new cases respectively, which accords with our previous prediction that around 10,000 claims per month is where the MOJ portal will stabilise.

Discussions in terms of percentage fall from prior years are no longer really relevant in the post-OIC era and it is necessary to review the data from both portals as above to see the complete picture.

New EL/PL claims 

New EL claims are fairly stable with 2,515 and 2,609 CNFs in October and November respectively, the latter figure being 77.2% up on the same period in 2020. Whilst that isn't a meaningful comparison due to lockdown, it is worth noting that the figure is up even on November 2019 (pre-lockdown) where 2,412 CNFs were recorded. 

 
PL claims for October and November were 3,376 and 3,381 respectively, so again stable. The November figure is 53.8% up on the prior year but even looking at the 2019 figure of 2,883 new claims, this is a fairly significant increase of 17.27%. 
Even EL disease is seeing an upturn with 408 CNFs presented in November 2021, an increase of 119.4% on last year and going back to 2019 shows a similar percentage increase. 

 
The combined total for all three work types shows the overall trend and is perhaps evidence of the claims industry shift towards non-RTA work:

 
After a long period of decline, even the cumulative casualty graph is changing direction:

PSLA & court packs 

In RTA, with fewer new claims coming into the process, PSLA continued its rise to an average settlement of £3,428 in November 2021, 7.3% up on the prior month and 18.57% year on year, perhaps a better comparison. With new JC Guidelines due in April and a higher proportion of the claims in the portal being over £5,000, it is inevitable this figure will go higher still in 2022.

Court packs in RTA fell as would also be expected against a general backdrop of fewer claims in the system. 3,046 packs were submitted in November 2021 against 3,957 in November 2020 and 5,362 in November 2019. This fall will most likely continue as the OIC transition takes effect. 

 
In EL, PSLA has breached the £5,000 mark for only the second time, rising to £5,028 in November 2021. The rise has been more gradual than RTA, 4.16% up on 2020 levels. In PL, the rise is again slower but generally an upward trajectory. With the EL limit set to rise to £1,500 in 2022, it doesn't seem that many claims will be caught by the increase.