Whiplash reforms delayed until August
Written By - Hassan Ditta - February 27,2020
Scepticism has increased in recent weeks that the government would be able to meet its self-imposed 6th April deadline for implementing the portal. A written statement in parliament was made today postponing the policy, with a new implementation date of 1 August.
The Ministry of Justice says it remains 'firmly committed' to implementing measures to tackle the high number and cost of whiplash claims, including plans to increase the small claims limit and introduced fixed damages.
Buckland said: 'The government has decided that more time is necessary to make sure the whiplash reform programme is fully ready for implementation. We have always been clear that we need to do this right rather than hastily. In particular, we need to provide sufficient time to work with the Civil Procedure Rules Committee to put in place the supporting rules and pre-action protocol and to give industry sufficient time to prepare their businesses for the changes to how small road traffic personal injury claims are managed. We will also lay the statutory instrument in parliament to introduce the tariff of damages for whiplash injuries.'
The MoJ confirmed today that a key element of the portal for helping litigants in person will be dropped. Where insurers deny liability or where claimants feel an offer is too low, the plan was to offer a free alternative dispute resolution scheme to seek adjudication of their case.
Buckland said 'no practicable solution' could be found for ADR, and as a result it will no longer be part of the online service. Instead, the proposal is to develop 'bespoke processes' to enable litigants to go to court to establish liability.
In news that will be more welcome to the claimant sector, the government has decided the increase in the small claims track will not apply to children of protected parties. Lawyers had warned that these groups would not have access to the portal and would not be able to source their own medical report as required to settle whiplash claims.
Until they can access the online service, the normal track for claims by children and protected parties which include a whiplash injury, will be the fast track and these claims will not be allocated to the small claims track. This means that, for now, these claimants will be able to instruct a legal representative who may obtain a medical report on their behalf and their costs of legal representation will remain recoverable.
The failure to meet the April deadline will be a source of embarrassment for the Ministry of Justice, which has consistently stated its commitment to setting the portal live on that date. It is now over a year since the Civil Liability Act was passed, with provisions to increase the small claims limit to £5,000 for RTA claims and set a tariff for whiplash injury damages.
Personal injury experts warned the government not to rush through implementation of the portal, but insurers continued to press for urgent action.
The insurance industry has committed millions of pounds to funding the design and implementation of the portal, which is intended to allow unrepresented claimants to bring their own case. The Motor Insurers Bureau, handed responsibility for the project, has already invited lawyers to register and has repeatedly said it has met its deadlines to be ready on time.
But a logjam at the Ministry of Justice, exacerbated by inaction during the general election period, has halted progress. There has been no parliamentary legislation to increase the small claims limit, no publication of the tariff levels and no formal drafting of the pre-action protocol required as part of the portal. This protocol would still need formal approval from the Civil Procedure Rules Committee, which is not due to discuss the issue until it meets next month.