“Terminate your retainer” if client accepts pre-med whiplash offer

Whiplash: Ban was part of the quid pro quo

A lawyer whose client accepts a pre-medical offer to settle a whiplash claim against advice would have to terminate their retainer to comply with the Civil Liability Act 2018, a barrister has warned.

Nicholas Truelove of Kings Chambers questioned whether this result fitted with the purpose of the legislation “and the wider obligations at play”.

The ban on pre-med offers was part of the quid pro quo of introducing the heavily restricted fees in the whiplash regime.

Writing for the Motor Accident Solicitors Society, he said section 6(2)(d) of the Act suggested that a regulated person could not “accept… a payment in settlement of the claim”.

“That compels the view that a firm could not accept any pre-medical offers even with an adamant client who had been advised not to accept it. Such circumstances foreseeably could result in retainer termination.”

He said the regulators needed to provide guidance to lawyers to avoid such a situation – for the purposes of the Act, the regulators are the Solicitors Regulation Authority, Chartered Institute of Legal Executives and Financial Conduct Authority.

“This can be achieved by outlining that as long as a pre-medical offer has not been elicited, and as long as the advice of the regulated person is to not accept the offer (perhaps such advice to be required in writing), then there would be no regulatory breach for communicating a client’s wishes against clear advice.

“This approach requires no more than a purposive construction of section 6(1) and (2) such that the prohibition to ‘accepting a payment’ is limited to situations where the regulated person ‘advises the doing of ’ as prescribed under sub-section 6(1)(b).”

Mr Truelove said the scope of the ban appeared to apply to all ‘whiplash injuries’ sustained in road traffic accidents, regardless as to their prospective scope and value – including those likely to end up on the multi-track.

In the absence of regulatory guidance, he said lawyers ran the risk of disciplinary action for “passively accepting offers, even against advice”.

In the meantime, he recommended that lawyers in such a situation should “remind the offering party of each side’s obligations under the Act and seek confirmation the offer will remain open until a report is obtained, absent which the offeree would have to report them to their regulator”.

He added: “Experience has shown this has worked.”

Leave a Comment

By clicking Submit you consent to Legal Futures storing your personal data and confirm you have read our Privacy Policy and section 5 of our Terms & Conditions which deals with user-generated content. All comments will be moderated before posting.

Required fields are marked *
Email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.


How a good customer journey can put your business on the map

Good customer service should be a priority for any business and, if you want to stay ahead of the competition, something that’s constantly under review.

The CAT’s welcome boost for the funding industry

There was welcome guidance from the Competition Appeal Tribunal this week for funded cases looking for certainty following PACCAR, with the renegotiated Sony litigation funding agreement upheld as lawful.

The promising prospects and potential pitfalls of AI in the legal industry

The legal industry, steeped in tradition, precedent, and the intricacies of human interpretation, is witnessing an increasingly apparent integration of artificial intelligence as the digital era progresses.

Loading animation