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Whiplash reform: Government confirms that… it can’t confirm anything yet

Client Alerts12/06/2020

With whiplash reform delayed until next April as a result of COVID-19, it was expected that it would move significantly down the Government’s list of priorities. This week the Ministry of Justice confirmed that is the case.

As we all know, the Government stated (via a much-anticipated Written Ministerial Statement in April this year) that it was delaying the first stage of implementation of whiplash reform until 2021 so that it could focus on the COVID-19 pandemic. It seemed fairly clear even then that things would not be back to normal by June, with the Government unable to turn its attention back to the day-to-day.

Notwithstanding this, there has been a series of Parliamentary Questions (PQs) from former Shadow Justice Minister (and more recently a member of the Justice Committee) Andy Slaughter MP this week. Predictably, the responses from the Ministry of Justice (MoJ) made clear that COVID-19 was still the priority, and it was not bringing forward a timetable for this set of reform.

The statements in themselves are unsurprising, as the MoJ was always unlikely to be able to move forward on matters such as whiplash at the height of a pandemic. What is noteworthy, however, is that these PQs showcase that whiplash isn’t going away and that there is still significant interest in this topic from backbenchers. Lobbying is clearly ongoing on the topic, and (judging by the level of coverage in the insurance trade press), there is still significant interest from stakeholders on all sides.

The Government’s responses to the PQs are all copied below but can broadly be broken down into three points:

  • There will be information on the Parliamentary timetable for whiplash reform published at some point….but not yet.
  • Part 2 of the whiplash reforms won’t even be looked at until after part 1 is implemented.
  • The Government is standing by its decision to remove an alternative dispute resolution (ADR) mechanism from the portal.

The parliamentary questions are set out in full below:   

Small Claims

Q: To ask the Secretary of State for Justice, what steps he is taking to ensure that the new small claims portal will not create an incentive for insurers to deny a claims liability as a result of the Government's decision not to establish an alternative dispute resolution mechanism.

A: The government announced on 21 April 2020 that all work related to the implementation of the whiplash reforms has been paused and the implementation timetable has been moved to April 2021 because of the impact of the Covid-19 pandemic.

Generally, the online whiplash claims service is being designed to be simple and easy to operate for all users. Once we resume work on the whiplash reform programme, the government will continue its work with the Civil Procedure Rule Committee on new and revised Rules, Pre-action Protocol and Practice Direction to underpin the reforms and the system. This will include consideration of incentives and controls for all users of the online claims service where it is appropriate to do so.

Currently, motor insurers accept liability for damages in the majority of whiplash claims and we do not expect insurer behaviour to change after implementation. However, claimants will have the option to go to court to establish liability where this is necessary.

Personal Injury: Compensation

Q: To ask the Secretary of State for Justice, when he plans to publish the second part of the Government's response to the Reforming the Soft Tissue Injury (whiplash) Claims Process consultation.

A: The government announced on 21 April 2020 that work related to the implementation of the whiplash reforms in the Civil Liability Act 2018, and the raising of the small claims limit for road traffic accident claims, has been paused and the implementation timetable moved to April 2021. This will enable the personal injury sector to focus on delivering their response to Covid-19, as well as allowing the government to focus on providing key justice services. Implementing these reforms in April 2021 will remain the Government’s priority. We are aware of the continued interest in the issues raised in Part 2 of the ‘Reforming the Soft Tissue Injury (whiplash) Claims Process’ consultation paper and will be considering our response to that consultation after the April 2021 implementation.

Personal Injury: Compensation (2)

Q: To ask the Secretary of State for Justice, what the timeframe is for the introduction of secondary legislation in relation to the (a) increase in the small claims limit for road traffic accident claims from £1,000 to £5,000 and (b) Government’s proposed tariff structure for minor injury claims.

A: The government announced on 21 April 2020, by way of Written Ministerial Statement (WMS), that all work related to the implementation of the whiplash reforms has been paused and the implementation timetable has been moved to April 2021. This will enable the personal injury sector to focus on delivering their response to Covid-19, as well as allowing the government to focus on providing key justice services.

The government will make further announcements, including on the Parliamentary timetable for the relevant Statutory Instruments, in due course. The full WMS can be found here.