Implementing whiplash reform – part 1 outlined early by MoJ

Today the MoJ published part 1 of its response to the recent whiplash consultation, which is well ahead of the expected date of 7 April – make of that what you will.

It will also publish the Prison and Courts Bill today, the legislative framework for implementing these reforms (along with secondary rules and CPR changes). The changes planned should apply from 1 October 2018; although the transitional trigger is not yet clear (the consultation indicated it could be for ‘accidents on or after’). The principal elements announced today are set out below.

General damages for PSLA for RTA claims

  • The idea of a ban on general damages in ‘minor’ cases has been dropped. Instead there will be a fixed tariff for cases with symptoms up to 24 months’ duration (based on a prognosis approach). As a result, the debate over defining a ‘minor’ claim as one with symptoms of less than six or nine months has been rendered nugatory.
  • This is a climb-down from the idea of a complete ban, which was probably never going to fly and/or would have required a disproportionate amount of the Government’s political capital to make it happen.
  • The proposed tariff is set out below. It is a single tariff to cover both whiplash claims and minor psychological claims (very likely in an attempt to minimise ‘symptom creep’ towards psychological harm).
  • The tariff has been refined slightly following consultation (a) as a single tariff, as already noted (b) to take account of new bands of 0-three and four-six months’ injury duration and (c) to reflect the 13th edition of the Judicial College Guidelines. This third element rectifies the consultation’s use of the 12th edition, which some might otherwise have seized on as a flaw in the MoJ’s approach.

 

Injury duration (months) 2015 average payment for PSLA – uplifted to take account of JCG uplift (industry data) Judicial College Guideline (JCG) amounts (13th edition), published September 2015 New tariff amounts (£)

 

0–3 £1,750 a few hundred pounds to £2,050 £225
4–6 £2,150 £2,050 to £3,630 £450
7–9 £2,600 £2,050 to £3,630 £765
10–12 £3,100 £2,050 to £3,630 £1,190
13–15 £3,500 £3,630 to £6,600 £1,820
16–18 £3,950 £3,630 to £6,600 £2,660
19–24 £4,500 £3,630 to £6,600 £3,725

 

Small track limit for injury claims

  • This will be increased to £5,000 for RTA claims and to £2,000 for other injury claims (very probably including EL disease cases and clinical negligence claims which, once again, are not referenced by the MoJ).
  • The former is a clearly a step-change to drive policy by changing the behaviours and costs in RTA cases. The latter is said to be merely an inflationary increase.
  • The consultation paper was not entirely convincing on whether there was a settled intention to apply the £5,000 limit to all injury cases, so the new split limits should be seen as more of a clarification than a change in MoJ policy.

Banning pre-medical offers

  • This will be introduced for RTA whiplash claims only and will be a regulatory issue.
  • There will be no exceptions to the ban.

Recommendations of the Insurance Fraud Taskforce

  • Consideration of these has been postponed to part 2 of the MoJ’s whiplash response. It may come as little surprise to observers of the MoJ’s modus operandi to learn that this second document will “be issued in due course”.

The MoJ published a short summary of the key points, with a link to a full 45 page response paper, on its consultation hub here


ak Written by Alistair Kinley, director of policy and government affairs

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