The Ministry of Justice (MoJ) today bowed to the inevitable and announced that implementation of the whiplash reforms will be delayed from 6 April to 1 August.
While stressing it remained committed to the changes, it has also ditched the alternative dispute resolution (ADR) element of the new portal that was meant to help resolve liability disputes.
The written statement in Parliament by Lord Chancellor Robert Buckland confirmed too that claims by vulnerable road users, as well as children and protected parties, would not be covered by the new regime and they would be able to bring claims as now on the fast-track.
Mr Buckland said there had been “major progress” towards implementation, but continued: “The government has decided that more time is necessary to make sure the whiplash reform programme is fully ready for implementation. We have always been clear that we need to do this right rather than hastily.
“In particular, we need to provide sufficient time to work with the Civil Procedure Rule Committee to put in place the supporting rules and pre-action protocol and to give industry sufficient time to prepare their businesses for the changes to how small road traffic personal injury claims are managed.
“We will also lay the statutory instrument in Parliament to introduce the tariff of damages for whiplash injuries.”
Mr Buckland said delaying until 1 August 2020 would allow the necessary rules and pre-action protocol, and the statutory tariff, to be published “in sufficient time before implementation”.
On ADR, he said “no practicable solution which gave sufficient coverage of ADR for claims could be found”.
“As a result, ADR will no longer be part of the online service. Instead, we will ensure access to justice by developing bespoke processes to enable litigants to go to court to establish liability.”
Mr Buckland confirmed that the increase in the small claims track limit would not apply to those who have been termed vulnerable road-users, such as motor-cyclists, cyclists and pedestrians, as well as children or protected parties.
“This will enable the government to test the processes and ensure that we have them correct before considering further extension.
“Because these claimants will not be subject to the new small claims limit, they will also not be subject to the new pre-action protocol and so will not have access to the online service.
“As such, they will not be able to source their own medical report via the online service, which is statutorily required to settle claims for whiplash injuries.
“Therefore, until they can access the online service, the normal track for claims by children and protected parties which include a whiplash injury, will be the fast-track and these claims will not be allocated to the small claims track.”
He stressed that this decision has been taken “for no reason other than that we consider it the fairest and most straightforward approach to ensuring, for now, that these claimants can obtain the medical report which they must obtain before they can settle their claim”.
The delay has long seemed unavoidable and became a racing certainty earlier this month when the rule committee did not even discuss the changes it needed to approve to implement the new regime. It is due to do so at its March meeting.
Though the portal for claims running under the scheme will be ready for 6 April, the Motor Insurers Bureau – which has built it for the MoJ – has made clear that this is only on the basis that the final version of the rules are largely the same as the draft ones it has been working with.
Further, various statutory instruments – including one finalising the compensation tariff – have still to go through Parliament, and there are several outstanding policy issues to resolve.
A further sign of delay came on Monday, when the MoJ issued a consultation on introducing supplementary qualifying criteria for medical reporting organisations that want to provide medical reports to unrepresented claimants.
Though the consultation closes on 6 March, there is little prospect that the MoJ can consider the responses, make and publish a decision, amend the MedCo rules and then give the market time to adjust in time for 6 April.