However, some industry commentators believe ‘we’re still only half-way there on whiplash’ and that ‘none of this actually helps anyone to work out how to set up and process a whiplash claim’
Yesterday, the government published its Whiplash Injury Regulations 2021, forming part of the Civil Liability Act 2018 – these regulations outline the final tariff table for soft tissue or whiplash injuries and clarify that a medical report is required in order to settle a whiplash injury-related claim.
The government also published The Civil Procedure (Amendment No. 2) Rules 2021, which allows for whiplash injury claims from road traffic accidents to progress to the new Official Injury Claim (OIC) portal, also known as the Litigants in Person (LiP) portal. It achieved this by amending the previous Civil Procedure Rules 1998 to enable all road traffic accident (RTA) claims worth less than £5,000 to drop into the new portal.
These reforms for whiplash claims, which have been spearheaded by the Ministry of Justice (MoJ) and the Motor Insurers’ Bureau (MIB) will be effective from 31 May.
Although the insurance industry has long-awaited these formal steps, Alistair Kinley, director of policy and government affairs at BLM, said “we’re still only half-way there on whiplash”.
He continued: “It might seem like important news that three separate new regulations on whiplash have just been published. Perhaps, but all we’ve got is confirmation that the reforms will take effect from 31 May and a slightly revised tariff for whiplash damages. None of this actually helps anyone to work out how to set up and process a whiplash claim in the second half of 2021.
“Frankly, even with this new material we’re still only half-way there on whiplash.
“The really important piece for claimants, practitioners and insurers is the new small claims/whiplash pre-action protocol - the necessary detail of how these cases will be handled in practice - and that’s still missing.”
Ian Davies, who leads the motor team at global law firm Kennedys, added: “Make no mistake – these are seismic changes to low value RTA claims in the UK.
“The market is now set for a frantic three months of development to ensure systems are in place to deal with the claims from 31 May under the new regime.
“But the true scale of the challenge in preparing for 31 May will only become clear once we have absorbed the new practice direction, pre-action protocol and the detail around the new portal. There are bound to be grey areas and points of friction which will ultimately require resolution by the courts.
“Every release of information brings greater clarity.”
Lack of time
Although believing “it’s good to see the rules finally appear”, Matthew Maxwell Scott, executive director of The Association of Consumer Support Organisations (ACSO), added that “we still await the pre-action protocol and practice direction and, pending their publication, our members have very little time to prepare fully for the portal launch at the end of May”.
Commenting on other aspects of the revealed regulations, Maxwell Scott said: “We are pleased that ministers have held off on increasing the limit for non-RTA claims, such as employer liability and public liability, leaving the limit for these claims at £1,000. Injury claims fell dramatically during 2020 and were falling before then anyway.
“The MoJ has also heeded ACSO’s concerns with regards to fair treatment for vulnerable road users and has decided against increasing the small claims limit for this group.
“The decision to remove entirely the small claims limit for children and protected parties and direct all their claims into the fast track is a good short-term fix, but we need to know what the long-term plans are for these types of injured persons.”
However, “greater clarity on rehabilitation is certainly needed, as is the inclusion of an alternative dispute resolution mechanism,” he added.
Settling whiplash claims
Regarding the Whiplash Injury Regulations 2021, the legal documentation stated that “these regulations specify, by way of a tariff, the total amount of damages for pain, suffering and loss of amenity that a court may award for road traffic accident-related whiplash injuries of up to two-years duration and any minor psychological injuries suffered on the same occasion.
“The regulations permit the court to award a maximum uplift of 20% on those damages in exceptional circumstances.
“These regulations further specify the medical evidence that must be provided before a regulated person (defined in section 9 of the Civil Liability Act 2018) may invite a payment in settlement of, or offer payment to settle, or make or accept a payment in settlement of, an RTA related whiplash injury claim.”
Graham Pulford, chief executive of handl Group, added that the government must remain open to making changes at a later date, however, if “teething issues” cause problems.
He said: “Five years after the government first announced its intention to reform whiplash claims, we are now at the business end of that action, although we still await the pre-action protocol and practice directions.
“As we enter the final lap before the launch of the portal in May, I am confident that handl Group companies are ready to service customers from day one with reforms-ready service solutions.
“The launch of the portal will inevitably throw up teething issues, so we urge the MoJ and MIB to remain open to making further changes to processes if those changes improve the consumer experience.”
This view is shared by Qamar Anwar, managing director of First4Lawyers, who described the government’s route around the whiplash reforms as a ”piecemeal approach”. He also questioned whether the May bank holiday was the most efficient time to launch a new initiative of this scale.
“I can’t say we’re surprised at the piecemeal approach the government is taking to these reforms and while we’re pleased to finally have sight of the rules, the fact that the Pre-Action Protocol and Practice Direction remain conspicuously absent speaks volumes,” he said.
“Without these final, yet key, pieces of the puzzle the industry remains adrift in being able to adequately prepare for the confirmed portal launch of 31 May.
“Surely a bank holiday is the worst possible time to launch such a fundamental change to consumer rights, when fewer staff will be around to address what are going to be at best teething problems. We hope there are sufficient plans in place to allow rapid changes to the portal if required so that the injured and vulnerable aren’t left without the appropriate support, but if what we have seen to date is anything to go on, we doubt it.”
Calum McPhail, head of liability claims at Zurich, added “Zurich strongly welcomes the publication of the civil procedure rules amendments and remains supportive of the personal injury whiplash reforms.
“Our priority is now to scrutinise the new rules and related protocols and be sure that systems, policies and procedures are thoroughly prepared and tested.
”This period ahead of the portal’s end of May go-live date is essential to review and understand the new rules and make the necessary preparations to ensure that everything works smoothly for the claimant from day one.
”We are committed to working with all stakeholders so that the new process works fast and seamlessly for all parties including unrepresented claimants. If it does not, then there is a danger of driving these claimants into the hands of [claims management companies] who will take part of the damages as fees.”
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