Whiplash: Rules will hopefully come by end of the year
Ministers remain “determined” to implement the whiplash reforms next April, a top Ministry of Justice (MoJ) official confirmed yesterday, although it is still not certain when the rules governing the process will be published.
Viewers of the first session of this week’s virtual PI Futures conference also heard that the question of how minor non-whiplash injuries also suffered by victims will be dealt with is to be determined by a test case before the courts.
David Parkin, deputy director of civil justice at the MoJ, was clear that the intention was for no more delays to introducing the new whiplash portal, which was originally meant to happen in April 2019, then April 2020 and finally August 2020 before being moved to April 2021 because of Covid-19.
“MoJ ministers are still determined to implement the whiplash reforms in April 2021,” he said.
Other panellists at the session, representing both claimant and defendant interests, made clear the urgency of having the new pre-action protocol and practice direction.
Mr Parkin said that, despite “extensive” work with the Civil Procedure Rule Committee, there was “still some way to go” before finalising them.
Though the “hope” was that they would be published next month, the civil servant did not commit to allowing three months between publication and implementation, to give stakeholders sufficient time to adjust their systems.
“We would try and give three months if we can,” he said, conceding: “It’s incredibly complex. We think we still have got time but there isn’t a lot of time.”
Dominic Clayden, chief executive of the Motor Insurers’ Bureau, which is building the portal, said it should be ready by April, subject to the new rules not being radically different from what it expected. He said it was currently 85% built.
Mr Parkin said the plan was to lay the draft whiplash injury regulations – detailing the compensation tariff, the uplift a judge can impose and the ban on pre-medical offers, early in the New Year. This will be by affirmative resolution, meaning there will be a debate in Parliament.
The new rules, including raising the small claims limit to £5,000, will be introduced via a negative resolution, meaning it becomes law unless a motion to reject it is passed by the House of Commons within 40 days.
Mr Parkin said the tariff, a draft of which was published in 2018, would be uprated for inflation but predicted the figures would otherwise not change much. He described them as “proportionate and fair” for the types of injuries involved.
Claimant lawyers have strongly objected to the level of damages, with the Motor Accident Solicitors Society writing last week to the Lord Chief Justice – who has to be consulted on the tariff – to urge him to call for a review of the figures.
The official said the Civil Liability Act did not require the MoJ to consult more widely on the tariff “and ministers do not intend to”.
In February, the MoJ dropped plans [1] to provide an alternative dispute resolution mechanism inside the portal for cases where liability was disputed, although Mr Parkin said this could be introduced in the future. There would instead be a streamlined “bespoke court service” to resolve liability and potentially quantum disputes “quite quickly”.
Despite the delays in the courts – one delegate reported that he had just received a date for a stage 3 hearing in February 2022 – Mr Parkin said he was confident they could deliver this.
He said the MoJ expected 85-90% of cases to settle within the portal. It anticipates the portal handling around 150,000 cases in the first year before reaching a “steady state” of 400,000 by years three to four.
Discussions are continuing on how to deal with portal cases where there are also minor non-whiplash injuries. Insurers have expressed concern that this element of claims could become inflated to make up for the lower tariff, while claimant solicitors are questioning how to value them.
“The government is quite happy and willing to support a test case that might go to court to try and resolve how best they will be valued under the new system,” Mr Parkin said, although he recognised that this could take some time.
Other panellists continued to express concern about the timescale. Brett Dixon, vice-president of the Association of Personal Injury Lawyers, said they were worried that the outstanding work was being “dangerously compressed to meet an artificial deadline”, while Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, argued it was worth “taking a little longer” so the new regime could be launched when completely ready.
But Mr Parkin indicated that there could always be reasons to delay. “That is a recipe to wait years and years and years.”
The increase in the small claims limit for employers’ and public liability claims to £2,000 is also due to happen in April.
Mr Parkin appeared more open to the possibility of this being delayed. Saying that the whiplash reforms were the “priority”, he told delegates: “If people wish to make representations on the timing of that, then please do so.”
To watch a recording of the full 90-minute session, costing £35 + VAT, please contact conference@legalfutures.co.uk [2]. Alternatively, you can still sign up for the whole of PI Futures [3], for £99 + VAT, with a session taking place at midday each day this week, and including the recording from yesterday.