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Whiplash Reform: What does the new timetable look like?

Client Alerts28/02/2020

The Government has now confirmed that the whiplash reform programme won’t be implemented until 1 August. But apart from the timing, does yesterday’s statement leave us any the wiser?

With so much left to be done and only a matter of weeks before the proposed implementation date, the Government statement yesterday announcing that a delay to 1 August 2020 had an air of inevitability about it.

Although that delay is likely to be the key focus, there were other updates hidden in the statement, not least that alternative dispute resolution (ADR) will not be part of the online service (with “bespoke” as-of-yet-unknown alternatives promised) and that children/protected parties and vulnerable road users (VRUs) will be exempt from the increase in the small claims track.

Certainty is always welcome. But do we have it? What’s still unclear, and what’s been left unsaid?

ADR to be replaced with [insert solution here]

ADR in the portal will be dropped. No big surprise given the challenges involved but it’s reasonable to expect for a suitable alternative to be announced at this point in time. It wasn’t.

The Justice Secretary’s statement declared that “Instead, we will ensure access to justice by developing bespoke processes to enable litigants to go to court to establish liability.”

The detail stopped there. And in any case, does a bespoke process (i.e. the small claims track) not already exist?

Children/protected parties

Yesterday’s statement said “The increase in the small claims track limit will [also] not apply to children and protected parties”.

This seems quite clear. Except the statement later goes on to say “until they can access the online Service, the normal track for claims by children and protected parties which include a whiplash injury, will be the fast track and these claims will not be allocated to the small claims track.”

This suggests that there will be no small claims track for children/protected parties, and that all of their claims valued between £0 and £25,000 are to be dealt with in the fast track with its recoverable costs regime. Certainly many commentators agree with this interpretation.

However, we are unsure. There is ambiguity here – is it procedurally possible to exclude a category of claimant from the SCT entirely? Perhaps the Justice Secretary means Part 7 instead of the fast track. And in any event, is a fast track only process for children even desirable? Wouldn’t a small claims track with a fixed recoverable costs regime be preferable for both claimant and defendant in this situation?

There are so many questions even before we consider potential unintended consequences of this part of the statement. For example, what about a child who suffers a 3 month whiplash injury? Children and protected parties will be subject to the tariff (as confirmed in the Government’s answer to this parliamentary question in October 2019). According to previous drafts of the tariff (and we don’t expect this to vary widely upon publication), this would mean their claim is worth £235.

It’s natural to question the proportionality of a £235 claim within a fixed recoverable costs regime.

Vulnerable road users (VRUs)

The statement says that “The increase in the small claims track limit will not apply to those who have been termed “vulnerable road-users”, for example, motor-cyclists, cyclists and pedestrians, and who in any event will not subject our whiplash tariff provisions”.

This is helpful clarification as whilst the Civil Liability Act itself expressly excludes VRUs from the whiplash definition and therefore tariffed damages, there had been ambiguity as to whether they were captured by the increase to the SCT. We now know that will not be case.

Motor Injury Claim SCT limits

According to the statement, it would therefore appear that there will now be three different small claims track limits:

  • Adults (non VRUs) = £5,000
  • VRUs = £1,000
  • Children/protected parties = £0 (i.e. no small claims track)

EL/PL SCT limit

No mention of the increase in the EL/PL SCT limit to £2,000.

Has this been forgotten, or have the ABI and USDAW managed to convince the Government that this is not something to pursue at this point? Wednesday’s parliamentary event may have managed to change the MOJ’s minds on this but the statement is silent on this point.

What still needs to be done?

Notwithstanding all of the above, there are still a number of outstanding issues to be resolved:

  • New rules and pre-action protocol – the Civil Procedure Rules Committee meets again in March to discuss the required rules on this issue.
  • Judicial College Guidelines – will we get any updated guidance on quantifying minor additional injuries? It’s looking unlikely but watch this space.
  • Medical Reporting – earlier this week the Government put out a consultation for thoughts on supplementary qualifying criteria for those medical reporting organisations wishing to provide a medical report.
  • Statutory tariffs – today’s statement promised a statutory instrument in Parliament for the damages tariff, which would need to be brought forward in sufficient time for scrutiny and approval.

Next procedural and parliamentary steps?

In addition to these technical matters, the road to the 1 August implementation comes with a number of procedural and parliamentary steps. Yesterday’s statement promised that the necessary rules and pre-action protocols “will be published in sufficient time” before the implementation, and stated that the Government will lay the necessary statutory instruments in Parliament to introduce the tariff of damages.

More precise timetables can be estimated. Bearing in mind that:

  • The process of passing these statutory instruments ordinarily takes around 6 weeks.
  • There are three Parliamentary recesses between now and the 1 August:
  • Easter 31 March – 21 April
  • May Day 6 May - 11 May
  • Whitsun 21 May – 2 June
  • Parliament rises for summer recess on 21 July…

…the statutory instruments should be laid before Parliament by 9 June at the latest to give it enough time to gain the requisite parliamentary approvals.

Needless to say, the Keoghs Market Affairs Team will be monitoring this issue very closely in coming months. If you’d like further information please don’t hesitate to contact Samantha Ramen, Don Clarke or Steve Thomas.