The Ministry of Justice (MoJ) continues to stall on when it will progress the next wave of personal injury reform, with the delay set to stretch for at least another year.
It has also defended the controversial decision to drop the provision of ADR for cases inside the new whiplash system where liability is disputed.
The MoJ consulted on a raft of changes in late 2016, some of which became the Civil Liability Act 2018 and will go live on April 2021, but its decision on the other issues in part 2 of the consultation – which closed on 6 January 2017 – has still not been announced.
Speaking in January, David Parkin, deputy director of civil justice and law policy at the MoJ, said he regretted having predicted a year earlier that the government response to these would be published by the end of 2019, and refused to give a new date.
Answering a question in Parliament from Labour’s Andy Slaughter earlier this week, justice minister Alex Chalk was equally vague.
Stressing that next year’s reforms were the priority, he said: “We are aware of the continued interest in the issues raised in part 2… and will be considering our response to that consultation after the April 2021 implementation.”
The changes contemplated in part 2 could also have a significant impact on claims, such as reforms to credit hire and rehabilitation to reduce their cost, and introducing a system of early notification of claims.
This could include a requirement that claimants seek medical treatment within a set period of time, failing which the claim would be presumed to be ‘minor’.
The MoJ sought views as well on further restricting the recoverability of disbursements, for example for medical reports, as well as two outstanding recommendations of the Insurance Fraud Taskforce, which reported in January 2016.
These were amending the claims notification form to require details of the source of referral of the claim, and changing the qualified one-way costs shifting rules so that a claimant was required to seek the court’s permission to discontinue less than 28 days before trial.
Mr Slaughter also asked how the MoJ would ensure the decision on ADR would not create “an incentive for insurers to deny a claim’s liability”.
Mr Chalk replied that, once work on the whiplash reform programme resumed, “the government will continue its work with the Civil Procedure Rule Committee on new and revised rules, pre-action protocol and practice direction to underpin the reforms and the system.
“This will include consideration of incentives and controls for all users of the online claims service where it is appropriate to do so.
“Currently, motor insurers accept liability for damages in the majority of whiplash claims and we do not expect insurer behaviour to change after implementation. However, claimants will have the option to go to court to establish liability where this is necessary.”
Claimant lawyers have frequently condemned this as inadequate given the likely inequality of arms in the small claims court.
Part 2 of the 2016 consultation also included a call for evidence on the merits of introducing a ‘Barème’ system, variations of which are seen in various European countries.
This is a way of categorising the injuries suffered – often alongside other evidence such as the level of damage to the vehicle or the speed of the crash – using a scale with points awarded which equate to differing degrees of injury/incapacity. The ‘points’ award is then used to cost the damages paid to the injured claimant.
The MoJ stressed that it was not intending to introduce such a system for England and Wales “at this time”, but it could be a way in future to handle road traffic claims not covered by the new regime.