We have noted previously that the Government’s idea of omitting the definition of whiplash from new legislation (Civil Liability Bill) and putting it in secondary regulations instead was heavily criticised by Parliamentary Committees, Peers and others. It is therefore probably not surprising that the Ministry of Justice (MoJ) has now changed its mind on the point.
Justice Minster Lord Keen has tabled amendments for the Lords Report Stage debate on Tuesday, 12 June which define whiplash injuries on the face of the Bill and which, being Government amendments, are certain to be carried. A whiplash injury will be defined as:
(a) a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or
(b) an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.
In a further concession to its critics the Government is making other amendments which will require (i) wide judicial, legal and medical consultation before any whiplash regulations are made under the Bill and (ii) the definition of whiplash to be reviewed formally after three years.
A separate Government amendment requires the prescribed tariff of damages for whiplash injury to be reviewed every three years. Although this falls short of the call from some Peers to include the tariff of damages in the Bill itself (rather than in regulations), the move may be enough to stem criticism on this particular aspect.
Perhaps surprisingly, no other amendments to the whiplash provisions of the Bill have so far been tabled. That said, the Justice Committee’s recent report on the related topic of proposed increases in small claims limit does level significant criticism at many aspects of the MoJ’s overall package of whiplash and small claims reforms and – given that the report was published after the most recent Lords debate on the Bill – it seems all but inevitable that these will be revisited during next Tuesday’s debate.
A very clear area of concern is what progress the MoJ is making in setting up an electronic portal for claimants in person to use for cases falling within the proposed small claims track increases (to £5,000 for motor claims and to £2,000 for casualty cases). There is so far very little visible activity on this key element of the reform package and some clear evidence of progress from the Ministry would be surely be welcomed by all stakeholders, particularly since it appears to be sticking with implementing all of this in April 2019 (as confirmed in a written answer this week from Justice Minister Rory Stewart).
We’ll give a further update after the report stage debate.
Authored by Alistair Kinley, Director of Policy & Regulatory Affairs