The Emperor’s New Clothes? Whiplash reforms delayed for four months to August 2020

27 Feb 2020

Just like the town folk in the fairy tale about the duped naked Emperor, we could all see that something odd was going on here but none of us called it out. The Lord Chancellor Robert Buckland now has.

In a Parliamentary statement today he confirmed that implementation of the whiplash reforms will be delayed until 1 August 2020. He also clarified important aspects of the package of measures, including handling arrangements for vulnerable road users and the shelving of plans for ADR.

The likelihood of some delay to the whiplash reforms has been increasing over the last few weeks, not least due to the recently released April 2020 updates to the Civil Procedure Rules having nothing at all about these changes.

Having to delay things now for a further four months after steadfastly hanging on to its preferred April 2020 date for so very long is hardly the most shining example of MoJ’s ability to deliver policy reforms efficiently. But despite egg on faces (metaphorically, at least) somewhere deep in the MoJ building in Petty France, it is very difficult to see further delay after the Lord Chancellor’s intervention today.

So it looks a safe bet that these changes really are going to happen and the Lord Chancellor summarised the work on the reforms to date in the following passage in his statement.

“With the MIB, and using independent research, we have designed the new Service to put the needs of the claimant at its heart. It will provide a simple, user-friendly and efficient online route to provide those affected by road traffic accidents with an opportunity to settle small claims for personal injury without the need for legal representation or to go to court. Where a claimant is not able to make a claim online there will be the option to do so on paper. A dedicated customer contact centre will be available to support all customers through the journey if necessary.With the MIB, and using independent research, we have designed the new Service to put the needs of the claimant at its heart. It will provide a simple, user-friendly and efficient online route to provide those affected by road traffic accidents with an opportunity to settle small claims for personal injury without the need for legal representation or to go to court. Where a claimant is not able to make a claim online there will be the option to do so on paper. A dedicated customer contact centre will be available to support all customers through the journey if necessary.”

It’s widely known that the supporting online platform for the reforms has already been worked up and tested by the MIB and it has been open to user registration for over a month already.

Next week a series of joint MIB / MoJ seminars on the reforms will take place. These events may well have had something to do with the timing of the statement, given that today is the last sitting day in Parliament before the first such seminar on Monday. And just this afternoon the MIB said that the “seminars next week will provide an opportunity for MIB and the Ministry of Justice to discuss the new delivery timetable in more detail.”

The Lord Chancellor confirmed that there will be no ADR in the new process because “no practicable solution which gave sufficient coverage of ADR” was found. The alternative offered today is that the MoJ will “ensure access to justice by developing bespoke processes to enable litigants to go to court to establish liability.” At this stage we really have no idea what that means.

The statement repeats the commitment to exclude vulnerable road users (ie anyone not in a car) from the increase in the small claims track limit to £5,000 and from the new (lower) tariff of whiplash damages. And it reconfirms that children and protected parties will also be excluded from the increase in the small claims limit and, therefore, excluded from the new pre-action protocol and the new online service. Their claims will remain on the fast track, as at present, but despite that it nevertheless appears that they may be subject to tariff awards.

When these measures do come in this August it will be closer to five than to four years since the ideas were first outlined by a Minister, namely the-then Chancellor George Osborne in his November 2015 Autumn Statement. There will probably have been around two million new whiplash claims in England & Wales since then.

The immediate next activities are the joint MoJ / MIB seminars next week. Those will be followed – at dates yet to be confirmed – by the publication of the new rules and protocol and of the statutory instrument setting out the whiplash damages tariff. We’ll be issuing further updates and very likely organising our own briefing events as these important materials are made available over the spring / early summer.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Alistair Kinley

Alistair Kinley

Director of Policy & Government Affairs,
London


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