Claimant and insurer representatives have begun work on developing test cases to take to the Court of Appeal for claims that involve both whiplash and non-whiplash injuries.
They said a “collaborative test case process should aim to bring clarity as soon as possible”.
Neither the Civil Liability Act nor the regulations made under it address the question of how to value so-called mixed claims, where a claimant suffers a whiplash injury subject to the new tariff and another injury for which there is no tariff.
This has been a longstanding concern – insurers are worried that the non-tariff element of claims could become inflated to make up for the lower whiplash tariff, while claimant solicitors have questioned how to value them.
Speaking at our PI Futures conference last autumn, Ministry of Justice official David Parkin said the government was “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”.
The MIB has confirmed today that this is the approach being taken. It is facilitating a cross-sector working group that is creating “a framework to take forward a range of test cases with the aim of obtaining clarity on dealing with mixed injury claims from the courts”.
The framework will cover timing, the parameters for identifying suitable test cases, and interim compensation arrangements to ensure individual claimants are not disadvantaged by their involvement in the test cases.
The MIB said: “The group, with representation from APIL, ABI, MASS, and their respective members, will work together to seek guidance from the senior courts as quickly as possible now that part 1 of the Civil Liability Act is in force.
“All share the common goal to avoid any detriment to injured claimants…
“Unless and until definitive guidance on how to value the damages for pain, suffering and loss of amenity is provided, all share concerns that it will be unclear how claims with overlap between tariff and non-tariff injuries should settle.
The MIB said Ministry of Justice officials were aware of the proposal and “support the principle of industry collaboration to improve the claims process for injured parties”.
Stuart Hanley, head of legal practice at claimant firm Minster Law, questioned what litigants with mixed claims should do in what could be many months before the appeal court rules.
“The lower courts may adjourn/stay quantum hearings on these cases pending guidance from the Court of Appeal,” he speculated.
“A lot depends on the nature of the offer from the at-fault insurer and any discount they apply for any overlap between the injuries. The offer may well be lower than what a claimant could expect from the court, which will leave them at risk of detriment.
“For injured people having to decide whether to stick and wait – for several months – or gamble and risk under-settling their cases, this does not feel like an improvement to the old system that ministers promised.”
Mr Hanley said this hiatus underlined the need for claimant firms and insurers to co-operate.
“Justice delayed is justice denied, and we can surely all agree that short-changing injured people is not access to justice.”