Whiplash reforms delayed AGAIN – but only for a month this time

Buckland: Reforms are a key priority

The Lord Chancellor today announced yet another delay to implementation of the whiplash reforms, pushing the date back a month to May this year.

Lawyers have reacted by arguing that more time is needed, given the outstanding issues.

The reforms were first meant to come into force in April 2019, before being pushed back to April 2020, then October 2020 and finally April 2021 in light of the coronavirus crisis.

The supporting rules and pre-action protocol have still not been published and three months between that happening and the go-live date is seen as the bare minimum required for the industry to prepare.

In a written statement to Parliament, Robert Buckland said the Ministry of Justice (MoJ) “continues to work” with the Civil Procedure Rule Committee to finalise the rule changes, while the Motor Insurers’ Bureau “continues to make excellent progress on the build of the Official Injury Claim Service”.

He continued: “I do however acknowledge the challenges experienced by all this year in the face of the pandemic. I said at the time of my April statement that the Government will continue to monitor developments in relation to the current pandemic and will, if necessary, make further announcements in regard to the implementation of these important reforms.

“So we have listened carefully to the concerns raised by stakeholders, in particular the need for as much notice as possible to take the necessary steps in anticipation of these reforms and to prepare their businesses for the changes to how small road traffic personal injury claims are managed.

“We understand the importance of industry preparedness and, after consideration, it is for that reason we have decided to allow an additional short period of time to further accommodate this. As such, we will implement the Whiplash Reform Programme in May 2021.”

Mr Buckland stressed that delivering the reforms “remains a key government priority”.

Dominic Clayden, chief executive of the Motor Insurers Bureau, said: “We can confirm that the build of Official Injury Claim service remains on track.

“This is based on the current assumed scope agreed with the MoJ. MIB will complete the last stages of the build in conjunction with MoJ when the Civil Procedure Rule Committee has agreed the new rules and new pre-action protocol for the new service.”

Sam Elsby, president of the Association of Personal Injury Lawyers, said: “Work on the new system has been dangerously compressed to meet this artificial deadline, so we welcome any delay which is used to address our concerns about outstanding issues of critical importance to injured people.

“We need to know exactly how the proposed new ‘bespoke’ court process will replace ADR; we need to know the outcome of consultation with the Lord Chief Justice about the new whiplash tariffs, and there needs to be clarification about how mixed claims will be handled in the new system.

“Furthermore, the public must be properly informed well in advance about the new system that claimants will have to use when they are injured.”

Paul Nicholls, the chair of the Motor Accident Solicitors Society said: “With key issues outstanding, the new rules not yet finalised and a worsening backlog of court cases, a further delay is clearly necessary, but only allowing an extra month is neither pragmatic or sensible and gives very little extra time to prepare.

“The new process must be fit-for-purpose and the sector needs time to adjust to the new changes. If the new rules are not published shortly, the new May date will be quickly redundant. Crucially, the entire process needs to be clearly explained for the future unrepresented claimant.

“Rather than plucking a date out of the air which may be delayed further, isn’t it now the time to conduct a more thorough review of the proposed changes to ensure that they work and can actually be delivered?”

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations described the decision as “inevitable”, but said it raised a broader point.

“It is abundantly clear that trying to deliver this project in relative isolation from experienced industry practitioners is not working. Now that we face more delay, ministers must rethink the route to market for the whiplash reform programme and get the claims sector much more involved…

“By working in a spirit of compromise, there’s every chance we can deliver a solution that’s fit for purpose.”

Mr Maxwell Scott said this included setting out a timetable to restore alternative dispute resolution to the plans and ensuring rehabilitation was a central part of the process.

“The MoJ also needs to tidy up a number of other issues, such as helping litigants in person value non-tariff injuries and undertaking thorough and independent consumer testing.

“Minsters must also remember that mobility is an important element to the claim so credit hire and repair must be properly accounted for in the process.

“There’s no going back, but as things stand we’re not really going forward either, so let us help the government get the portal right.”

Richard Miller, head of justice at the Law Society, said the delay “provides welcome pause for thought and much-needed clarity” for the sector.

“There are still important policy decisions to be made about how the portal will work in practice. For example, the government will need to give further guidance on how cases will be handled consistently where there are reciprocal claims from the two drivers, or where there is one vulnerable user who is exempt from the new portal  – such as a child, cyclist or pedestrian – and one who isn’t and has to use it.

“Solicitors – for both claimants and defendants – as well as the general public will need sufficient time to understand the new rules and adapt to these changes, and the middle of a pandemic is a bad time to expect them to do so.

“The Ministry of Justice will need to work quickly to make these important policy decisions if they are to meet the May 2021 roll-out date.”

Donna Scully, director at Carpenters Group, said: “Only allowing an extra month when we have yet to see the new rules is unreasonable both for those trying to develop a workable process once we have the rules and for customers who need the system to work from the start.

“Amending a process already up and running is much harder as we learnt with the Medco system. The new claims process must be fully fit-for-purpose when launched to smooth the transition and to minimise the increased risks of fraudulent behaviour.

“There are significant dangers if there is a rush to implement too early.”

Qamar Anwar, managing director of First4Lawyers, argued that the continuing delay raised questions about the “validity and evidence base” around the reforms.

“Missing from today’s statement is a clear timetable which is both predictable and lamentable. Now might be the time for the MoJ to remind itself of its objectives, namely: ‘ensure access to justice in a way that best meets people’s needs and support a flourishing legal services sector.’ These reforms fly in the face of both.”

Tom Jones, head of policy at Thompsons Solicitors, said: “These further delays to the whiplash reforms by the justice secretary are a case bowing to the inevitable. Whatever they may say publicly, delay will be a relief for insurers given the reforms are nowhere near ready.

“The logical next step is to remove the proposed increase in the small claims limit for employer and public liability from the equation; workplace injury claims have never been the target and the unnecessary increase makes delivery of the whiplash agenda significantly more complex.”

From the defendant side, Mark Shepherd, assistant director, head of general insurance policy at the Association of British Insurers, welcomed the confirmation that the reforms were proceeding and would soon be implemented.

“We urge the government and rule committee to complete and publish the new rules as soon as possible… We have always made clear that insurers will require a minimum of three months from publication of the final rules to be ready and we remain firmly committed to this.”

On Twitter, Aviva said only a short delay was “good news for consumers, who’ve waited a long time for these reforms which will reduce pressure on the cost of motor insurance, while ridding our roads of crash for cash fraudsters”.

It pledged: “We will pass on 100% of the savings from the reforms to our customers.”

Nigel Teasdale, past president of the Forum of Insurance Lawyers, said the delay was not as long as some had predicted.

“The government are keen for the Civil Procedure Rule Committee to sign off the rules even if not perfect so as to keep as close to the previously announced implementation date as possible.

“‘Get Brexit Done’ has been superseded by ‘Get Whiplash Done’, although perhaps not as headline grabbing. That means inevitably there will be some gaps and/or areas of controversy in the new rules once they are released.”

Ian Davies, head of motor at leading defendant firm Kennedys, described the delay as sensible given that all parties needed “at least three months to update and amend their systems to accommodate the new rules” and urged that the new rules were published as soon as possible.

Speaking at November’s PI Futures event, David Parkin, deputy director of civil justice at the MoJ, 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 this 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.

He also said that the question of how minor non-whiplash injuries would be dealt with could be determined by a test case before the courts.

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