Additional source material on whiplash reforms released on Friday

The Pre-Action Protocol (PAP) and the Practice Direction (PD) for the whiplash and small claims reforms were released on Friday, just a day after the whiplash damages tariff was finalised. It is important to note that the new PAP – The RTA Small Claims PAP, available here – covers all road traffic injury claims which fall under the new small track limit of £5,000 (for the injury) and are subject to an overall maximum claim value of £10,000. It will be mandatory for qualifying claims to follow the new PAP procedures, which will be brought to operational life via the (OIC) Portal. 

We set out some early thoughts on the new RTA SCP below. We’ll be developing these views and presenting them in online briefings to be arranged over the new few weeks – please get in touch if you would like to be involved.

  • The RTA SCP and PD make for very dry reading. Not only do they run to nearly 200 pages, they are very closely drafted to cover every possible permutation in the handling of a small motor injury claim.
  • The increase in the injury element of the small claims track from £1,000 to £5,000 means legal costs will not generally be recoverable. An increase in litigants in person ie unrepresented claimants is expected. Earlier estimates from MoJ had pitched LiP cases as potentially increasing from 5% of claims to as high as 30% of claims.
  • The conventional RTA PAP will be amended to reflect the increase in the small claims track to £5,000.
  • What should be much more user-friendly than the text of the new SCP will be the functionality of  the OIC Portal, which will operate according the rules set out in the SCP and generate screens, text input sections, prompts and messages depending on how a particular claim is handled in real life.
  • Nearly all of the communication between the parties operating under the SCP is to be made via the OIC Portal.
  • The OIC Portal will offer guidance on completing on screen forms and will provide other support for claimants. It will also provide a solution for the ‘digitally excluded’.
  • The SCP, and presumably the OIC interface as well, is structured around notification of the claim, the liability decision and the claims process thereafter and is designed to promote settlement.
  • The OIC Portal will be linked to MedCo to enable medical reports to be obtained based on automatically generated instructions including the parties’ versions of the incident.
  • The PAP provides that the compensator will generally pay for the fixed cost report obtained via the MedCo process.
  • Credit hire claims have been hived off and should be dealt with by other procedures. Even so, the RTA SCP provides a mechanism for capturing information on so-called ‘non-protocol vehicle costs’.
  • An offer and counter offer process kicks in once the medical report and the claimant’s list of losses has been disclosed. There are time limits for this and an interesting ratcheting effect by which a party’s subsequent offers must be higher (compensator) or lower (claimant) than its prior offer. 
  • Certain categories of case are excluded – notably vulnerable road users as defined – and these will remain subject to the conventional RTA PAP.
  • As with the RTA PAP, the SCP has exit points relating to revaluation and to non-compliance with steps or time tables. But exited claims will not seamlessly fall into the RTA PAP and notification will need to begin again from scratch.
  • The SCP makes no provision for ADR, in line with a policy decision taken previously by MoJ.

Managing the expectations of LiPs in this process looks to be a key challenge for compensators, as does ensuring settlement proposals are fair and transparent. The absence of ADR in the reforms arguably does not help with the latter, but it is not a decision which is going to be reversed.

There is little doubt compensator behaviours will be closely scrutinised by claimant representatives. Their own challenge from the reforms is a lot different and we expect to see the market evolve in response to the reforms, perhaps towards more integration of incident management and legal services, or perhaps towards  ‘we’ll do it for you’ models which offer customer interfaces with the OIC.

We will all learn a good deal more about the challenges and probable responses by all stakeholders as views on the finalised package of the reforms emerge in the run up to implementation on 31 May.

Alistair Kinley, Director of Policy & Government Affairs

Leave a Reply