We noted on Thursday 7 June that only the Government had tabled amendments to the whiplash aspect of the Civil Liability Bill. By the afternoon of Friday 8 June, however, a range of opposition and crossbench amendments had been tabled which attempt to restrict the Government’s proposed reform of whiplash damages in various ways, as set out below. The amendments will be debated at report stage on Tuesday 12 June.
The Government’s policy is to introduce, in regulations, a tariff of general damages for whiplash injuries in which symptoms are of less than two years’ duration. The level of the proposed tariff is noticeably lower that currently levels of damages as set out in the Judicial College Guidelines and only in exceptional circumstances would judges be permitted to depart from it.
The most swingeing amendment has been sponsored by former Lord Chief Justice Lord Woolf. He favours removing entirely the idea of a tariff of damages – a key element of the Government’s reforms – and leaving things largely as they are. It is therefore difficult to see this surviving later votes in the Commons even if Peers were to support it now.
Other amendments would retain a tariff but change its scope and effect. For example, a Labour amendment seeks to limit it to symptoms of less than one year, rather than two. Liberal Democrat amendments would (i) introduce – in the Bill, rather than in regulations – a significantly higher tariff than the Government has indicated and (ii) give judges a very wide discretion to depart from any tariff.
What could be a significant crossbench amendment would require the Ministry to consult the Lord Chief Justice before making the regulations setting out the damages tariff. This idea has the backing of influential legal peers: Lord Judge (the former Lord Chief Justice), Lord Hope (former Deputy President of the Supreme Court), Lord Mackay (former Lord Chancellor) and Lord Pannick (a leading public law barrister).
The idea of requiring the FCA to make regulations so that insurers report formally on savings due to the reforms has again been raised. Another new amendment would stipulate that the cost of a medical report must be recoverable. This looks to be a probing amendment, given that the cost of a report is already recoverable where a claim succeeds.
One novel amendment seeks to ensure legal costs are recoverable in whiplash claims even if handled in the new increased small claims track. It attempts to do this by allowing for the costs of advice on quantum and/or liability to be recoverable by treating the claim for costs purposes “as if it were allocated to the fast track”. Since this would completely remove the second key element of the Government’s programme, it is quite difficult to see surviving Commons stages even if supported by Peers (as with Lord Woolf’s attempt to remove the tariff, above).
Authored by Alistair Kinley, Director of Policy & Regulatory Affairs