Line-by-line scrutiny of the measures in the Civil Liability Bill – which will reform whiplash claims and re-set the legal basis for determining the discount rate – is due to take place in the Lords at Committee stages scheduled for 10 and 15 May. A raft of relevant materials has emerged over the last few days and is summarised in this post. There are three key documents: the new draft whiplash regulations, a letter from Justice Minister Lord Keen to Peers and the list of proposed amendments tabled to date.
- The draft whiplash regulations released by the Ministry of Justice set out a definition of whiplash (based on injury to the neck, back or shoulders), include the proposed tariff* of general damages for such injuries and affirm the need for a report obtained via MedCo in such cases. The regulations are very likely being made available before the Committee stage debates so that Peers may refer to them during the debates, which might in some way deal with concerns from the Delegated Powers Committee that these matters ought to have been on the face of the Bill.
[* The tariff in the draft regulations is actually an earlier version of that included in the Bill’s impact assessment. We believe this is likely to have been a mistake, perhaps as a consequence of the Government working at pace to publish this material.]
- The letter from Lord Keen re-affirms the Government’s goals in reforming whiplash claims and in it he refers to the competitive nature of the motor insurance market as the mechanism by which savings would be passed on to customers. He re-states that the Government believes that the damages tariff should be in regulations rather than the Bill itself and that (claimant) lawyers will adapt and develop cost-effective services for injured claimants once the reforms are implemented. With regard to the discount rate, Lord Keen’s letter confirms that the Government’s aim is to have a new discount rate in place before the end of 2019, assuming that the Bill receives Royal Assent this year. He explains that that the Government will do everything it can to appoint the expert panel to advise the Lord Chancellor before then, so it is ready to begin its role in the rate-setting process very quickly after commencement.
- The amendments tabled for debate cover most of the issues above. Some seek to craft alternative definitions of whiplash to be inserted in the Bill; but the Government’s definition in the newly-released draft regulations may draw the sting from this attack. Others seek a role for the judiciary in setting the damages tariff and seek to reduce the scope of the reforms to cases in which symptoms last for less than 12 months, as opposed to 24 months preferred by Government. Further amendments would require insurers to report to the regulator on premiums savings. In respect of the discount rate, the thrust of several amendments is to foreshorten the 90 and 180 periods for the rate-setting process and/or to extend the cycle for review from at least every three to every five years. We think it is highly unlikely that any of these amendments will be pressed at this stage (and we have not therefore provided links to the text of what is highly technical material).
What will be of greatest interest is how Lord Keen deals, in responding to the debates this and next week, with the key issues raised in the amendments and how they sit with the Government policy as re-stated in his letter. Reports of those proceedings will follow on the blog in the usual way.
Blog written by Alistair Kinley, BLM’s director of policy & government affairs