Peers reject lawyers’ complaints about whiplash tariff

Parliament: Regulations need to be passed by both Houses

Peers have rejected the first challenge to the whiplash regulations from lawyers complaining that the new compensation tariff is too low.

The secondary legislation scrutiny committee said it was clear that Parliament had debated the issues underlying the statutory instrument that sets out the detail of the reforms, including that awards would be substantially reduced.

The draft Whiplash Injury Regulations 2021 have to be passed by both Houses of Parliament under the affirmative resolution procedure.

The committee examined them first and considered a submission from the Motor Accident Solicitors Society (MASS), which criticised both the tariff and the likely reduction in legal representation for claimants.

The committee said: “The Ministry of Justice’s (MoJ) response indicates that these issues were raised and decided during the passage of the Civil Liability Act 2018, the parent Act, and that the new system is exceptional, to deal with particular abuse.”

MASS contrasted the tariff with compensation for flight delays and holiday sickness claims, as well as what a claimant wit the same injury from a non-motor accident would receive.

The MoJ said a comparison with non-injury compensation was “not appropriate… as the circumstances are both different and unrelated”.

Its response continued: “Supporting evidence for a whiplash injury can be anecdotal and difficult to substantiate, whilst there will be strong objective evidence in the case of a transport delay, which is usually paid to compensate for financial loss.

“Financial losses in relation to whiplash claims are still payable in full as well as the claimant receiving an additional payment for the pain and suffering encountered.”

The MoJ said the tariff was in line with stated government policy during the passage of the Act, and that the levels suggested in the Judicial College Guidelines “are generally higher than the amount that most claims settle for”.

The MoJ rejected MASS’s claim that the reforms would restrict access to justice. The new small claims track pre-action protocol “will enable parties to reach a fair settlement without the need for separate legal advice”, and the Official Injury Claim portal has been “carefully designed” to mirror the requirements of the protocol.

The committee concluded: “The MoJ letter is a robust response that makes clear that these matters were fully debated during the passage of the 2018 Act and the issues were decided by Parliament.

“We note that illustrative tariff rates were available when the bill was in progress, which we regard as best practice, and so the House was clear that it was agreeing to a substantial reduction in awards.

“We also note that the 2018 Act includes a number of provisions which require review of how this scheme operates and that it can be modified if unintended consequences are found.”

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