'Unfair and unnecessary' - The behind scenes lobbying to thwart whiplash crackdown

It’s a troubling prospect for injured motorists and one that lawyers are fighting hard to avoid.

Lawyers claim the government’s Civil Liability Bill, in combination with separate plans to raise the small claims limit, will slash what they earn to the point where injured people will have to go it alone and represent themselves in court.

And it’s why, despite the government announcing this week the bill would come into force by April next year, lawyers still believe there is everything to play in the fight to water down the proposals.

Lawyers across the country are rallying to the cause.

Association of Personal Injury Lawyers (APIL) president, Brett Dixon is on the bill’s steering committee. He calls the bill “unnecessary”.

On 27 February, APIL will host a parliamentary event with MPs and raise their concerns that injured people’s right to compensation will be choked off. 

Elsewhere, lobby group Access to Justice is working to increase parliamentary pressure on ministers to soften their stance on raising the RTA small claims limits to  £5,000.

Access to Justice spokesman Andrew Twambley says: “The small claims limit can rise, but we think £2000 is high enough. £5000 for RTA is completely decisive and is intended to stop anyone claiming, making insurance pointless. There is no credible evidence or logic behind a rise to £5k.”

However, some lawyers are confident of the bill passing through, but it is looking less likely than before.

Weightmans law partner, David Johnson says that reform is urgently needed but notes the challenges facing the bill:

“I think it’s a contentious bill, and I think there is less confidence of it coming into effect than there may have been during the previous parliament.”

Injury Duration (months)	2015 average payment for PSLA (industry data) (£)	Judicial College Guidelines (13th edition) (£)	New Tariff Amounts (£)	Saving (£)
0-3	1,750	Up to 2,050	225	1,525 – 1,825
4-6	2,150	2,050 – 3,630	450	1,700 – 3,180
7-9	2,600	2,050 - 3,630	765	1,835 – 2,865
10-12	3,100	2,050 – 3,630	1,190	1,910 – 2,440
13-15	3,500	3,630 – 6,600	1,820	1,680 – 4,780
16-18	3,950	3,630 – 6,600	2,660	1,290 – 3,940
19-24	4,500	3,630 – 6,600	3,725	775 – 2,875

Divisive bill

So why exactly is the bill so contentious? The bill proposes a ban pre-medical offers and putting fixed limits on road accident soft tissue injuries.

Lawyers support the ban on pre-medical offers but complain the fixed limits are too draconian.

They say fixed injury payments proposed are way below what a claimant currently receives.

Director of lobby group Access to Justice, Matthew Maxwell-Scott, says: “It’s a bit of a blunt instrument because no injury is the same. But it is the numbers behind it which are way below the current guidelines. It will maybe cut down the cost for insurers, but lawyers aren’t going to be able to make any money.

“We want to know why politicians should set the numbers rather than judges because that seems sensible to us. Judges have been doing it for years.”

Small claims limit battle 

Stinging just as much for claimants, lawyers say, are plans to raise the small claims limit for road traffic accidents from £1,000 to £5,000.

This means injury compensation below £5,000 will classify as a small claim. 

Small claims court winners can’t claim back legal costs from the defendants. 

These changes, it is said, mean there’s not enough money on the table for lawyers to represent claimants in court.

The raising of the small claims limit is a ministerial decision, rather than a legislative programme that needs politicians rubber stamping.

Campaigners hope that with enough pressure from politicians, ministers will soften the limits.

Dixon says: “There is no real evidence to support raising the limit. The APIL thinks the increase is unfair and unnecessary. It’s not very fair for an injured person to represent themselves in the courts, against a wall of lawyers who represent the insurer.”

It’s been a long road to getting the reforms this far.”

Insurers claim whiplash deluge 

Insurance firms have lobbied hard for change, complaining that they are under siege from spurious whiplash claims.

The ABI, and hard campaigning from the likes of Aviva, helped spark the original whiplash reforms included in the Prisons and Courts Bill of 2016, but it never passed through parliament.

ABI spokesman Malcolm Tarling said the latest bill  “is what the industry has been working towards”.

Aviva’s claims director Andrew Morrish said: “We welcome confirmation of this timing. It’s critical that legislation is brought forward and a time table set to help reduce the cost of motor insurance and remove the excess cash in the system which drives so many dysfunctional behaviours.”

The government is supported by insurers, but they may have a tough time persuading politicians to vote through the bill – especially as it is being painted by lawyers as discriminatory against the man in the street who won’t be able to afford legal representation. 

Insurers argue that legal expenses insurance will cover motorists costs in court, although access to justice groups say this will raise premiums and the benefits are not always clear to motorists.

Weightmans law partner David Johnson says: “I think now there is a degree of nervousness in government about putting contentious legislation before parliament, on the basis that it obviously runs a risk of being voted down at a level that perhaps wasn’t there previously.”

Only time will tell if the reforms make their way through the political landscape in their current guise. One thing is for sure though: the controversy over the claims reforms will continue to rage on for some time yet.