Court of Appeal expedites hearing of whiplash mixed claim test cases

Brown: Hope for certainty

The Court of Appeal is to hear the expedited appeals in the first two cases on mixed injury claims – those involving both whiplash and non-whiplash injuries – in three weeks’ time.

Both the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society (MASS) have been given permission to intervene in the test cases.

When the Official Injury Claim (OIC) portal went live on 31 May 2021, the Ministry of Justice explicitly left guidance on how to handle claims involving both tariff and non-tariff injuries for the Court of Appeal.

A working group of claimant and defendant representatives was set up to find cases to take to the court, but the two cases that will be heard on either 30 November or 1 December did not come through that route.

We reported last month that His Honour Judge Wood in Liverpool has leapfrogged two decisions by District Judge Hennessy in Birkenhead to the Court of Appeal, Rabot v Hassam and Briggs v Laditan. The Court of Appeal has accepted the appeals and expedited the hearing.

Liverpool firm Robert James Solicitors represents the claimants.

DJ Hennessy held that the proper approach was to value both injuries separately in accordance with whatever scheme or tariff applied, and then reduce the total for any element of overlap of the non-tariff element with that already compensated for within the tariff for pain, suffering and loss of amenity.

The intervention by APIL and MASS has made on behalf of the claimant group. APIL secretary Brett Dixon said finding test cases has been “extremely difficult” because of “ongoing and well-documented problems” with the OIC portal.

“There is a broad range of issues to be considered in mixed injury claims and the test cases which are being brought outside of the stakeholder framework have provided a very timely opportunity for us to gain clarity from the Court of Appeal about how these issues should be dealt with as quickly as possible.”

Sue Brown, chair of MASS, added: “We are really pleased that the Court of Appeal has recognised the need for urgent guidance on these issues.

“Our concern, and that of the wider stakeholder group, has always been that the Court of Appeal is given the opportunity to consider the full range of scenarios that will affect those making a claim for whiplash and non-whiplash injuries.

“Our intervention will provide the court with the opportunity to consider these wider points and give injured people the certainty they deserve.”

Meanwhile, in separate news, it has emerged that the government will introduce a separate ‘intermediate’ track for cases worth £25,000 to £100,000 after all as part of the implementation of fixed recoverable costs (FRC) next April.

Such a track was proposed by Sir Rupert Jackson in the report that provided the framework for the extension of FRC, but the Ministry of Justice had originally decided this was too complex and costly, and that instead such cases should be assigned to an extended fast-track instead.

But according to the newly published minutes of October’s Civil Procedure Rule Committee meeting, it had become apparent that “some of the perceived practical difficulties” for HM Courts & Tribunals Service (HMCTS) in operating an intermediate track could be overcome.

“It was noted that it was expected that designated civil judges would determine which district judges could hear intermediate track cases…

“District Judge Clarke queried whether the arrangements would draw HMCTS staff into decisions about banding (especially with greater digitisation). The chair [Lord Justice Birss] noted that the limits on what HMCTS staff could do were clear, but that this may need further consideration.”

The minutes also confirmed that the government had committed to “regularly” reviewing FRC rates and that this would be the subject of more policy work and a further statement in due course.

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said: “Policy requires more than simply tying fixed costs to an index. We urge ministers to commit to regular and formal review of standards in the whole sector.

“In civil litigation, costs, rates, fees, damages guidelines, claims tracks and discount rates all crucially interplay with one another but at the moment they are reviewed and adjusted in silos, at different intervals and often adjusted using different metrics.”

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