Whiplash reforms: Halfway house?

NB: the Practice Directions and Pre-Action Protocol have now published:

• This is the main page with all published documents: http://www.justice.gov.uk/courts/procedure-rules/civil
• Here is the link to the Pre-Action Protocol: http://www.justice.gov.uk/courts/procedure-rules/civil/cpr-pap-update-feb-2021.pdf

We are looking at these documents and will send out further guidance shortly.

With the May 2021 launch date fast approaching, there has been much anticipation of seeing the ever-promised detail implementing the Government’s whiplash reforms. A bit - and in terms of what’s needed to prepare, it really is just a bit - of this detail was published yesterday. So what do we know, and what do we need to wait a little longer for?

Statutory instruments (SIs)

Three SIs were laid before Parliament:

• The Whiplash Injury Regulations 2021;
• The Civil Liability Act 2018 (Commencement No. 1 and Transitional Provision) Regulations 2021; and
• The Civil Procedure (Amendment No. 2) Rules 2021

The (draft) Whiplash Injury Regulations will be of most interest as this sets out the tariff. The level of damages has increased slightly (roughly 10%) from the levels on previous drafts, but the notable difference is that whiplash only injuries are now distinct from whiplash injuries with a psychological element.

The second and third SIs are largely procedural. One deals with the commencement date and the other contains the amendments to the CPR. In terms of new information, it confirms the exact date for the May launch – 31 May 2021 (a bank holiday no less!).

MedCo Qualifying Criteria/Additional Rules and Audit Processes

The Ministry of Justice (MoJ) also released the following two papers to deal with the necessary changes in respect of medical reporting organisations (MROs) and direct medical experts (DMEs):

• MedCo qualifying criteria - stakeholder engagement exercise
• MedCo: New rules and audit process for direct medical experts

The first paper sets out an analysis of the responses to the MoJ’s stakeholder survey and the new qualifying criteria for MROs (in Annex A). The second seeks to clarify the expectations of a DME and, in particular, details the rules around DMEs dealing with unrepresented claimants.

What are we still waiting for?

The devil is in the detail, and the detail is still to come. The documents most eagerly awaited are:

• The Pre-Action Protocol
• The Practice Direction

When can we expect to see this?

The industry has been clear about needing enough time to prepare. We wrote about this previously, counting back the months and weeks from May 2021. Given that we have seen some of the necessary secondary legislation and that time is marching on, there can’t be much time left before we have everything…surely?!