Whiplash reforms delay: reactions from the profession

Personal injury lawyers have welcomed the latest delay to the planned April implementation date of the so-called whiplash reforms to 1 August 2020.

Announcing the postponement in a written statement to Parliament, Justice Secretary Robert Buckland said that despite progress made so far in developing the new platform, “government has given careful consideration to whether implementing the whiplash measures in April remains practical, given the work that remains to be completed”.

Having listened to the arguments made by both claimant and insurance representative bodies, he said more time is needed.

The reforms under the Civil Liability Act 2018 will bring in a raft of reforms including a fixed tariff of general damages for whiplash injuries; a so-called “simple, user-friendly and efficient” online claims portal for claimants; and an increase in the small claims track for road traffic accident related injuries.

The Motor Insurance Bureau (MIB) has been building the whiplash reforms service on behalf of the Ministry of Justice. Following the statement by the Justice Secretary, the MIB said: “The additional time will allow the [Civil Procedure Rules Committee (CPRC)] to complete its work and provided we have their decisions by early May, and the changes are not too far away from what we’ve built to date, we are comfortable we will be ready for the new launch date”.

What else was announced?

Two key changes to the reforms were also announced by government. The originally planned form of alternative dispute resolution (ADR) for the adjudication of claimants’ liability and quantum claims has been dropped from the portal. This means there will be no facility enabling a claimant to question, for instance, what the insurer says happened and who is liable. Instead, government said it will “ensure access to justice by developing bespoke processes to enable litigants to go to court to establish liability”.

Quite what these “bespoke processes” will be has not been fleshed out and raises further unanswered questions, such as how claimants will be able to understand and access such processes and the potential impact on the courts system.

Also, the application of the new rules to children and other vulnerable parties have now been clarified. The Justice Secretary confirmed that the increase in the small claims track limit to £5,000 will not apply to children or to protected parties. Nor will minors or protected parties be subject to the new pre-action protocol – their claims will be allocated to the fast track and they will be able to instruct a solicitor in the same way they can now.

What’s next?

Government will be working with the CPRC to put in place the supporting rules and pre-action protocol; and it will lay the statutory instrument in Parliament to introduce the damages tariff for whiplash injuries.

The Justice Secretary also said in his statement to Parliament that “we have designed the new Service to put the needs of the claimant at its heart”. However, the legal profession, particularly personal injury lawyers, would beg to differ.

After the delay to the implementation date of the reforms was announced, the Law Society expressed its concern that the changes are being introduced through regulations without receiving full parliamentary scrutiny. The Society opposes a tariff system for whiplash injuries as well as low tariffs and has called for government to tackle whiplash fraud instead of introducing reforms that affect legitimate claims.

The Society said it will continue challenging the government to ensure the portal is fit for purpose and that those with low-value road traffic injuries have access to justice.

The Association of Personal Injury Lawyers (APIL) said the new system “confirms the government’s contempt for injured motorists”. APIL President Gordon Dalyell warned claimants: “You either accept [the insurer’s] version of events and the offer, or it’s hard luck.”

He commented: “The Government’s argument that you can have your ‘day in court’ and take the matter to the small claims court if you wish gives a false impression of access to justice.

“People who have had these injuries inflicted on them because of someone else’s careless driving deserve better than this.”

However, Law Society president Simon Davis said the decision to delay the implementation date provides a welcome “pause for thought” and welcomed the announcement that vulnerable parties, including children, motor cyclists and pedestrians, are exempt from the small claims limit increase and the portal.

But he said important policy decisions still need to be made about how the portal will work in practice, saying it is concerning that ADR dispute resolution has now been removed in its entirety.

He warned: “Solicitors – for both claimants and defendants – and the general public will need time to adapt to these changes.”

Ian Davies is a partner at Kennedys Law and represents defendant insurance companies. He said: “These reforms are important and urgent, but they need to be done right.”

He warned that the decision to move away from the ADR solution will put further pressure on the court system, and said: “For these reforms to have the desired effect of making the compensation system for low-value road traffic claims fairer and more proportionate, the Ministry of Justice must give us every chance to be ready. That means clear decisions, made quickly, with the underlying rules.

“Then we can go about making these reforms work for the public.”

 

 

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