Opposition peers and leading legal figures will today try and curb the government’s whiplash reforms as the Civil Liability Bill enters its crucial report stage.
Following last month’s committee stage, during which amendments probed the government’s thinking but were not pushed to a vote, this is the day when peers will make changes to the bill, if at all.
They will then go to the House of Commons, where it is likely that those that undermine core principles will be overturned – such as an amendment laid by former Lord Chief Justice Lord Woolf, Labour’s Lord Beecham and Liberal Democrat Lord Marks that would remove the concept of the compensation tariff entirely.
The government has laid its own amendments, bowing to pressure and putting a definition of whiplash on the face of the bill as “a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder”.
A whiplash injury connected to an injury not covered by this would not be caught by the new regime.
The Ministry of Justice has also included provisions for changing the definition, but the Lord Chancellor could not do so for at least three years and only then after publishing a report and consulting with the Lord Chief Justice, the Bar Council, the Law Society and the Chief Medical Officer. It would also require a parliamentary vote to approve.
The Ministry of Justice has not moved on similar pressure to put the tariff on the face of the bill. One amendment it has put would require a review of the tariff within three years, but without the same consultation requirements if it were to change.
An amendment put down by former Lord Chancellor Lord Mackay, former Lord Chief Justice Lord Judge, former deputy president of the Supreme Court Lord Hope of Craighead, and Lord Pannick QC would require the Lord Chancellor to consult the Lord Chief Justice before making the regulations that would set the tariff.
This arguably has a decent chance of success given its backers.
The Liberal Democrats have laid an amendment to put the tariff on the face of the bill at the current compensation levels, while Labour and others’ amendments – one supported by Lord Woolf – effectively do the same by making the Judicial College Guidelines the applicable tariff.
Labour and LibDem amendments would give the court freedom to award any amount above the tariff where it deemed it necessary; the government’s intention is only to allow a 20% increase at most.
Lord Woolf has also put his name to an amendment that would mean the new scheme only applied to injuries of a year’s duration, rather than two.
There are attempts to put the insurance industry’s promise that savings from the reforms will be passed on through lower motor premiums on a statutory footing.
One amendment laid jointly by Labour, the LibDems and a cross-bencher would empower the Financial Conduct Authority to order that insurers publish reports after the first year, and potentially in subsequent years, stating the savings achieved and the extent to which they have been applied to reduce premiums.
Labour is also trying to restrict the government’s movement over increasing the small claims limit for PI, which is not in the bill as it can be changed by the Civil Procedure Rule Committee.
The amendment would restrict increasing the limit from £1,000 to £1,500, and only if justified on the basis of the retail prices index since 1999. It could then only increase in £500 instalments on the basis of the index.
The amendments around the discount rate part of the bill relate mainly to greater use of periodical payment orders and the details of the review of the rate the Lord Chancellor will have to hold from time to time.