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Whiplash reforms: where are they now?

Posted: 24/04/2020

‘Whiplash reforms’ is the commonly-used label for the package of measures introduced by the Government to reform the way low-value personal injury claims arising from road traffic accidents are managed. This article takes a look back at the journey to now for the low-value claims process, and at what may be next. 

The road so far...

The past decade has witnessed a radical overhaul of the personal injury claims process. Most notably, 2010 saw the introduction of the ‘MoJ Portal’ for road traffic claims with an assessed value of £1,000 to £10,000. The main aim of the portal was primarily to manage personal injury claims quickly and efficiently – helping to keep claim costs down by introducing new fixed recoverable legal costs and to speed up the claims process.

The portal was deemed a great success by those who supported its implementation, and what followed in July 2013 was a vertical and horizontal expansion of the scope of the portal scheme which now not only covers personal injury claims arising out of road traffic accidents, but also employers’ liability and public liability claims up to a maximum value of £25,000. This change came along with a number of other reforms implemented by the Government at the time, in response to the Jackson Report which made drastic changes to the legal and economic landscape of the personal injury sector through changes to the Civil Procedure Rules and the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO).

When the portal scheme was extended in 2013, it encapsulated an overwhelmingly large volume of personal injury claims, and new protocols were introduced - as were further fixed legal cost tariffs. As the scope of the portal increased and the recoverable legal costs reduced, it was not unusual to find personal injury lawyers turning away people with difficult cases who they would have previously helped as the costs became disproportionate to the work needed and the damages that could be received. 

More recently we have seen the introduction of The Civil Liability Act 2018 (CLA 2018), which was enacted in December 2018 and will bring significant reforms to the personal injury market once again. The CLA will introduce a fixed tariff of damages that a court may award for pain, suffering and loss of amenity for whiplash injuries sustained in a road traffic accident, as well as a ban on the making or accepting of offers to settle a whiplash claim without a medical report. Alongside these will also be the increase of the small claims track limit for road traffic accident claims up to £5,000, which will remove the ability to recover any legal costs for these claims. In practice, this will likely mean that an injured individual will be unable to obtain legal representation for road traffic related claims up to a value of £5,000.

What next? 

The Motor Insurers’ Bureau (MIB) has been working with the Ministry of Justice (MoJ) to assist in implementing the changes set out in CLA 2018 with the build of a new Official Injury Claim Service, which will give those affected by road traffic accidents an opportunity to settle small claims for personal injury without the need for legal representation or to go to court. The full details of the scheme and the fixed tariffs applicable are not yet known.

The previous position of the MoJ was that 6 April 2020 would be the target launch date for the new Official Injury Claim Service: however, in a written statement made by the Lord Chancellor and Secretary of State for Justice Robert Buckland on 27 February 2020, the implementation date for the new measures was pushed back to 1 August 2020, citing a necessary need for more time to make sure the Whiplash Reform Programme is fully ready for implementation. 

On 21 April 2020 another announcement came from the Lord Chancellor which stated that after further consideration following the outbreak of Covid-19, the implementation of the Whiplash Reform Programme would be delayed until April 2021. The announcement acknowledged that the pandemic has had an unprecedented impact on the medical, legal and insurance sectors, and that the Government is focused on acting to ease the disruption and pressures caused by the Covid-19 outbreak where it can.

Clearly the Government remains firmly committed to implementing the reform measures. It is unlikely that it will stop there either, with extensions to the fixed cost regime in personal injury claims up to a maximum value of £250,000 and the possible introduction of a fixed cost regime for clinical negligence claims expected. Of most concern to the personal injury team here at Penningtons Manches Cooper is the potential for genuine claimants to be denied access to justice and specialist expert legal advice when injured through no fault of their own.

At the very least, this most recent announcement will allow time for the personal injury industry as a whole to adjust to the economic ramifications of Covid-19, and to generate awareness of what is to come next with the reform programme as well as what it will really mean for access to justice in practice.

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