De minimis

Most lawyers are familiar with the maxim de minimis non curat lex and the principle that courts should not focus on trivia when applying the law.

Our present government, with its many-pronged attack on accessibility to the law, mainly by removing means of funding, has brought a new and sinister significance to the Latin phrase that translates literally as the law does not care about little things.

As law centres close, barristers chambers and solicitors firms go bust, we wait for the next civil litigation costs announcement from the Ministry of Justice following the Prime Minister’s shuffle earlier this week.

Helen Grant has left after thirteen months as Djanogly’s successor, headed for the Department of Culture, Media and Sport  (work that one out) and is replaced by Shailesh Vara who, unlike our esteemed Lord Chancellor, is a lawyer.  Formerly a solicitor with CMS Cameron McKenna, Mr Vara practised in London and Hong Kong.

Is he to face the challenge of presenting the government’s response to what is no doubt perceived as the extremely unhelpful report from the House of Commons Transport Select Committee as part of Grayling’s attack on - sorry enquiry into - the “compensation culture” which as one of its products has us branded “the whiplash capital of Europe”?

Regular readers and avid followers of the debate will recall that the committee chaired by Louise Ellman MP made some thoroughly uppity findings about the unreliability of information promulgated by insurers and the government as well as their unhealthy collusion to the exclusion of claimant representatives.

For a reminder of the select committee’s key findings, and extracts from an revealing roasting of the top boys fielded by the insurance industry, see Hey diddle diddle.

The so called “whiplash epidemic” was confidently regarded by liability insurers and their chums in Whitehall as the cast-iron excuse to crank up the financial limit of the small claims track to at least £5,000.  This is a level at which, everybody within the industry knows, a very substantial number of personal injury claims – the vast majority of them genuine – would become litigation within which recovery of legal representatives’ costs is virtually impossible.

Naturally, this suits liability insurers because they save not only on costs but also on damages where they are dealing with unrepresented, uninformed people.  I considered that landscape in some detail in an article last month – Crash and Capture - reproduced at the link with the kind permission of Solicitors Journal. 

The transport committee report was not well received in the summer.  It’s been left to gather some dust, probably in the hope that people will forget key findings that there isn’t a whiplash crisis and that in fact an increase in the small claims track limit for personal injury cases would probably lead to more fraudulent claims and a resurgence of the claims management companies that the government has been working so hard to stamp out in recent years.

The latest signs are worrying for the claimant lobby. Yesterday we were hearing and reading a lot of publicity about raising the age for learner drivers, all ‘in the interests of saving many lives’.  There is also a mention about savings in insurance premia for society generally.

Undoubtedly what the government is primarily concerned with here is a saving for insurers in operating costs.  Whether or not that leads to any saving in premia is a moot question – the Transport Committee did not seem convinced and we have yet to see any explanation from government of how it will monitor cost reduction.

The truth is the government is not interested as long as the insurance industry can maintain a swell of popular support from those who want the cheapest now, don’t notice the plight of innocent victims and above all fail to recognize that they could be next.

As long as a portion of our largely shamed financial industry continues to generate revenue for the Treasury, and there is no silly talk about ending agreements to fund claims against uninsured drivers or to continue cover to householders in flood risk areas, then this administration seems likely to stand by.

Can we guess what view a former City and Hong Kong lawyer, acknowledged rising star of his party – a former assistant whip indeed - will take of Five grand in the overall scheme of things?

Is he about to show us that the law does still care about little things – and people?