Civil Liability Act 2018 and associated reforms: implementation update

Regrettably, this is not a comprehensive update on the whiplash and small claims reforms that are due to be implemented in just over a year. The title is, however, the heading used by Justice Minister Lord Keen in a recent letter about these reforms to the Justice Select Committee.

My earlier blog of 8 March ended with a call for clearer direction and rather more detailed communication in the coming weeks from the Ministry about the whiplash and small claims reforms. Lord Keen’s letter to the Committee, although dated 12 March, was not released until 27 March.  It provides a useful overview of the range of activity and progress to date but it fails to mention at all the previously-proposed implementation date of April 2020.

The carefully-drafted letter reports that the MIB, MoJ’s key delivery partner, has appointed US company PEGA to build and host the new IT portal which will “enable all claimants including those who are unrepresented to process road traffic accident related injury claims under the new £5,000 small claims track limit”.

The reference to “all claimants” is unequivocal and clearly suggests to me that represented claims and litigants in person alike will be using the new system. That being so, it would appear to follow that cases currently valued at £1,000 – £5,000 would migrate to the new IT portal rather than follow the existing Claims Portal Co system. This raises important questions of boundary, scope and overlap. Those, and other procedural matters, will surely be raised by the Civil Procedure Rule Committee, given that Lord Keen’s letter confirms that it and MoJ are engaged in developing a new pre-action protocol for these small track motor injury claims.

There is also a reference to ADR to support unrepresented claimants: “the IT system will provide access to a low-cost paper-based system” so that claimants may obtain “an independent view from a qualified expert on key elements of their claim.” Setting aside the unusual suggestion that technology will be used as a gateway to paper processing, the themes of the second passage – independent view, qualified expert, elements of claim – will surely require a good deal more by way of definition and detail before they can be take further forward in practice.

The need for medical evidence in these cases is a requirement of the 2018 Act, section 6 of which bans ‘pre-medical’ offers and settlements. On this, the letter indicates – using generic wording which comes close to jargon – that “further specific stakeholder engagement on this issue will be taken forward shortly”. It is very difficult indeed to know what that means and what timescale is planned, but we suspect that something which looks like a consultation about the processes for obtaining and paying for a medical report in the new small track could emerge in the next few weeks.

All in all, Lord Keen’s letter sheds some light developments but without providing key specific information that would, given change is a year away, have assisted in detailed planning for these reforms. That it has been made available on line by the Select Committee has to be welcomed, but the information it contains would surely have found a wider audience more quickly had the MoJ released it in a speech, media update or Ministerial reply.

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Authored by Alistair Kinley, director of policy and government affairs

Alistair.kinley@blmlaw.com

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