Whiplash reforms: a challenging future

The controversial whiplash reforms are now in force, introducing a (meagre) whiplash tariff and an increase to the small claims limits.

The reforms have been heavily criticised, not least because of the direct impact on claimants.

There is real concern at the low level of tariffs, which have been set significantly lower than those allowed under the Judicial College Guidelines. For instance, the new tariff for one or more whiplash that lasts up to three months is £240 (with potential for up to an additional £20 for minor psychological symptoms), compared to up to £2,300 under the Judicial College Guidelines.

As Richard Miller, the Law Society’s head of justice, points out: "People who have been injured through no fault of their own will now be entitled to less compensation and – in many cases – will not have a solicitor to help them through the claims process.”

To exacerbate the situation for potential claimants, there has been no media campaign highlighting these significant changes to the legal process for those injured in road traffic accidents (a deliberate failure on the part of government)?

The new online claims portal (which has already been hit with technical problems) allows road traffic accident victims to submit their online claims directly to the at-fault driver’s insurance company. But this has already attracted criticism: when the Civil Liability Act (CLA) came into effect on 31 May, only 25 medical experts had been approved to diagnose injuries for litigants in person using the portal, even though more than 150 applications for approval had been made.

Only approved medical experts may be instructed by unrepresented claimants. Solicitors would do well to note that the regulator has warned that it will prosecute any solicitor who facilitates an injury settlement without a medical examination.

Guidance and regulations

Regulations and guidance around the new reforms have been issued, but to what extent do they really assist? For unrepresented claimants, at 64 pages the guidance for claimants using the portal is lengthy. This does not bode well for enabling access to justice.

Miller comments: “How many claimants do they think will sift through 64 pages to guide them through their claim? Worse still, how will claimants know if their claim is worth more or less than £5,000?” The likelihood is many injured individuals with meritorious legal claims will decide not to go ahead with a claim.

Amendments to the CPR, including the Pre-Action Protocol and Practice Direction 27B (Claims Under the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents- Court Procedure) have also been published.

It is worth particularly noting that the protocol does not apply to every claim, such as claims by children, vulnerable parties (eg cyclists and pedestrians), protected parties or bankrupts; or where there was a breach of duty owed to a road user by a person who is not a road user. In these cases, the small claims track PI limit of £1,000 still applies.

Claims may fall out of the portal in certain situations, such as if the defendant makes an allegation of fraud or fundamental dishonesty on the claimant’s part or disputes that the accident in question resulted in the injuries following the disclosure of the medical report.

Many PI firms will be having difficult decisions to make in light of these developments.


Posted on 28.06.21