The Ministry of Justice (MoJ) has refused to give way to the concerns of claimant groups that children who suffer whiplash injuries lasting less than nine months will be denied access to justice under next April’s reforms.
Though the MoJ has excluded children from the higher small claims limit and having to use the new portal, they will still be caught by the damages tariff being introduced under the Civil Liability Act.
Under this, an injury of less than nine months’ duration translates into a maximum of £765 in compensation for any pain, suffering and loss of amenity, and so caught by the current small claims limit.
The court needs to approve a settlement involving a child, and the Association of Personal Injury Lawyers, Motor Accident Solicitors Society and Association of Consumer Support Organisations have all complained that no solicitor would be able to take on such a case financially.
But responding to a parliamentary question from Labour MP Ellie Reeves, justice minister Chris Philp said: “As the government made clear during the parliamentary debates, we see no fundamental reason why the level of compensation to be paid to minors or other protected parties in the event of a road traffic accident minor injury claim should be different to that paid to another injured party.
“The government therefore intends that the tariff of fixed damages for whiplash injuries should apply to minors and protected parties.”
He continued that children should, “for the time being”, be exempted from the increase in the small claims limit and the new online whiplash claims system.
“This is to enable consideration of the experience of non-vulnerable claimants using the new online service under the new limit before considering the long-term approach for children and other vulnerable parties.
“All minors and other protected parties in civil proceedings are subject to specific protections through part 21 of the Civil Procedure Rules. These include the requirement to be represented by a litigation friend and for the settlement of a claim to be approved by the court. These protections are unaffected by the measures in the Civil Liability Act.”
Speaking earlier, Ms Reeves said: “Ministers have failed to think through the impact of this legislation, and the result is that tens of thousands of injured children and protected parties will be denied access to justice, as they will be unable to gain redress for their injuries following a road traffic accident.
“I call on ministers to take urgent action in order to ensure that children, protected parties and their families can have confidence that the government will protect their interests and ensure they continue to receive appropriate care and attention in the eyes of the law.”
Meanwhile, the Treasury has finalised the regulations under the Civil Liability Act that will require motor insurers to provide information to the Financial Conduct Authority (FCA) from October 2023 showing whether the expected savings from both the whiplash and discount rate reforms have been passed on to consumers.
Claimant groups have said this should be done quicker, but responding to a consultation issued earlier this year, the Treasury disagreed.
It said: “Some responses suggested that firms should be required to provide information annually, in order to test whether firms are passing on savings.
“In order to avoid placing unnecessary burdens on firms, and to gather enough data to make an assessment of whether the market as a whole has passed on savings, firms will be required to make their return to the FCA once, by 1 October 2023, but to account separately for each of the reporting years within that return.
“The government is confident that if the insurance market remains highly competitive, insurers will keep to their commitment to pass the benefits of the Civil Liability Act reforms onto their customers. If this commitment is not upheld, the government will investigate and take appropriate steps.”
The Treasury has made some technical changes, including a clearer limitation to private motor polices only and an increase in the qualifying threshold to insurers which write 100,000 policies a year, rather 10,000 – it said this would still cover more than 95% of the market.
The response said the government would bring the regulations into force “in good time to allow firms to familiarise themselves with new requirements”.