MoJ finally responds to part 2 of whiplash consultation – five years on

Whiplash: Possible rehabilitation reform

The Ministry of Justice (MoJ) today unexpectedly published its response to part 2 of the whiplash consultation which closed in January 2017, with no proposals for any immediate reform.

However, it indicated possible changes in rehabilitation provision in particular.

The five-year delay was attributed to the focus on what became the Civil Liability Act 2018 and launch of the Official Injury Claim portal last May.

The response said that, given the wait, “specific actions will not be taken forward based on the evidence supplied”.

“Where additional action is to be taken, further announcements will be made in relation to next steps, including as to whether supplementary evidence gathering is required.”

The consultation asked whether qualified one-way costs shifting (QOCS) provisions should be amended so that a claimant had to seek the court’s permission to discontinue less than 28 days before trial – this was aimed at preventing those bringing fraudulent claims from discontinuing on the eve of trial out of fear of a fundamental dishonesty finding.

The response said: “There is no clear agreement from stakeholders on this issue with good arguments both for and against making changes in this area put forward.”

It noted that a Civil Justice Council report in 2020 could not reach a consensus on the issue and recommended further detailed consultation before any change was made.

“Therefore, the government does not propose to proceed with changes specific to this recommendation at this time but will continue to monitor behaviours in relation to QOCS and may return to this issue in future if there is a need to do so.”

The MoJ asked about models to control credit hire costs but said that, since the consultation, the industry has reinforced and revised the voluntary general terms of agreement for the credit hire industry (GTA).

“As well as the GTA, many of those operating in the sector have also developed specific streamlined agreements to enable the credit hire process to work effectively for claimants,” the response said.

“The government is therefore of the view that the best approach would be to continue to work with the key stakeholders in this sector to monitor and improve the use of industry agreements, including the GTA.

“Further consideration will also be given to whether it would be beneficial to make the use of such agreements mandatory in the future.

“It should however be noted that further action on this point is subject to alignment with future government priorities as it would require a suitable primary legislative vehicle and parliamentary time to progress.”

The idea of a system of early notification of claims – with penalties if a claim is not made or medical treatment not sought within a particular period of time – will not go forward for the time being, especially in light of the new portal.

But the option would be “kept under review and may be returned to if required”.

The consultation sought views on a range of possible reforms to rehabilitation, but again the MoJ currently prefers to leave it to the industry.

“Since the consultation closed, the government has engaged regularly with a wide cross-section of the industry on the provision of rehabilitation. This includes discussions with both the Forum of Insurance Lawyers (FOIL) and the Association of Consumer Support Organisations (ACSO).

“This has enabled productive dialogue to continue with industry stakeholders including insurers, claimant lawyers, defendant lawyers, medical experts, medical reporting organisations and direct rehabilitation providers…

“MoJ will continue to engage with the sector, through FOIL, ACSO and other key stakeholders, to support the development of an industry Rehabilitation Code with a view to agreeing a cross sector approach to rehabilitation.”

A “longer-term option” could be to expand the MedCo system to support the provision of rehabilitation, it added.

The MoJ ditched the idea of restricting the recoverability of disbursements, such as for medical reports, saying the whiplash reforms should have “a significant impact on reducing costs in this area”.

Adding further restrictions on the recoverability of disbursements “would put undue burdens on unrepresented claimants and that it is more appropriate for the current arrangements for disbursements to continue”.

The consultation raised the idea of adopting the ‘Barème’ system seen in Europe. This is a way of categorising injuries using a scale, with points awarded which equate to differing degrees of injury/incapacity. The points total is then used to cost the damages.

The MoJ said there were “good arguments” for doing this, but with the need to “bed in” the whiplash reforms, “we are not currently minded to do so”.

It would, however, continue to keep this option “under review”.

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