As anticipated, the Whiplash Injury Regulations were passed by the Lords in Committee yesterday. Several speakers referred to the need to guard against what I would call symptom creep, ie the presentation of non-whiplash minor injuries becoming far more common than now in light of the tariffs in the regulations reducing awards for whiplash. In responding to this concern the Minister, Lord Wolfson, was “confident that judicial expertise will address these matters on a case-by-case basis, but we will look vigilantly to ensure that the regulations are not undermined, whether by the claims management industry or otherwise, by people reordering their claims so that minor injuries become the main part of their claim.”
In something of an unexpected move, Lord Wolfson had issued a short written statement before the debate that revived the proposed increase in the small claims limit in non-motor claims, EL & PL in particular, a topic on which the MoJ has been entirely silent for well over a year or more. Frankly, it had seemed fall away completely … but as of yesterday it is definitely back on the government’s agenda, with Lord Wolfson confirming decisions to “limit the proposed increase in the small claims limit for all other personal injury claims to £1,500 instead of £2,000 and to defer the implementation of this measure until April 2022.”
The Secretary of State for Justice communicated the statement to the Commons today and it seems likely that he, or one of his junior Ministers, will revisit these issues when the Commons debates the Whiplash regulations in the next few weeks.
Written by Alistair Kinley, Director of Policy and Government Affairs at BLM
This afternoon the House of Lords will debate the draft Whiplash Injury Regulations and related draft FCA rules. Both will take effect on 31 May 2021. The former sets the tariff for damages recoverable for whiplash injuries in which the symptoms last for less than 24 months – at significantly lower levels than the previous common law levels – and provide detail around the ban on settling whiplash claims without a medical report. The latter extends the powers of the FCA to police this ban.
The regulations will be passed by Peers – the enabling Act already has, back in 2018, and earlier versions of the tariff were available then – and in any event whiplash reform remains a government priority. In that regard, the MoJ’s recent robust response to criticism of the tariff is worth noting (at from page 4 here).
After this afternoon’s Lords debate the regulations will then pass to the Commons where they should be taken some in the early part of next month.
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 www.officialinjuryclaim.org.uk (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.