Earlier this week the government published the long-awaited Civil Liability Bill. The Bill, which also incorporates proposed legislation to adjust the mechanism for setting the discount rate in personal injury claims, introduces measures to reduce the frequency and cost of whiplash claims.
The whiplash provisions contained within Part 1 of the Bill largely follow those contained in the Prisons and Courts Bill, which failed to proceed through Parliament owing to the June 2017 snap general election, but with some welcome amendments.
Here’s everything you need to know…
Clause 1 lists the definitions within the Bill. These largely mirror those within the Prisons and Courts Bill, save that the definition of whiplash has been broadened to include back injuries as well as neck and shoulder (or any combination of the three). This is a welcome amendment, as under the previous draft legislation many whiplash-type soft tissue injuries would not have been in scope, which was never the intention. Likewise, the previous provision referring to breaches of duty, designed to exclude employers’ liability cases but with a risk of wider effect, has been removed: EL claims are already outside the scope of this Part.
In keeping with the previous drafting, injuries to motorcyclists are purposely excluded. The wording also effectively excludes pedestrians and pedal cyclists.
Clause 2 of the Bill creates the mechanism for setting the tariff. As in the Prisons and Courts Bill, the detail of the tariff is to be set by regulations and may either specify separate sums for minor psychological injuries in addition to whiplash or incorporate those into a single tariff. It remains to be seen to what extent the government deviates from the previous tariff amounts set in its response to the whiplash consultation which closed on 6th January 2017. Please click here to read more.
Discretionary uplift in ‘exceptional’ cases
Clause 3 provides the mechanism for the discretionary uplift on the tariff and once again mirrors the relevant clause in the Prisons and Courts Bill. The detail will be entirely confined to regulations, which must also specify the maximum percentage the court can apply by way of uplift. In the government's response to the consultation they proposed a cap on the uplift at 20% and there is no indication that this will be changed.
Clause 4 again mirrors the Prisons and Courts Bill and creates the framework for the ban on pre-medical offers. It is limited, as before, to whiplash claims within the overall definition. The ban is put into effect by making it a regulatory breach to invite, offer, make or accept a payment without first seeing "appropriate evidence". Regulations will provide what constitutes appropriate evidence, who may provide it and if they are required to be accredited by a specific organisation, which would appear to be a nod to the MedCo regime already in situ.
Practitioners should be aware that a breach is not an offence, nor a breach of statutory duty, nor does it make an agreement to settle unenforceable.
Monitoring and enforcement
Clauses 5 to 7 require the relevant regulator to make arrangements for monitoring and enforcement and are the same in effect as clauses 65 to 67 of the Prisons and Courts Bill. The requirements for the Financial Conduct Authority are set out separately in clause 6 and clause 7 contains a list of the relevant regulators (FCA, Claims Management Regulator, Law Society and other legal profession regulators).
The devil is in the detail
Whilst the Bill introduces measures on the key policies of introducing tariff damages and banning the making and receiving of pre-medical offers and payments, much of the detail has been left intentionally to delegated legislation, to allow adaptability in a changing market. However, in respect of all of the Part 1 provisions, the Bill specifies that the affirmative resolution procedure applies, which means that both Houses of Parliament must approve any regulations before they are passed.
The government is still working towards an implementation date of April 2019, which would dovetail with the change in Claims Management regulation. The move from the MoJ’s Claims Management Regulator to the FCA, which has greater resource and power to monitor CMC behaviours and take appropriate enforcement action, is an important part of the overall plan to benefit consumers.
Small claims track increase
The proposed increase in the small claims track limit for injury claims does not require primary legislation and therefore does not feature within the Civil Liability Bill. However, work is already under way to develop the requisite IT portal and processes to facilitate both the provisions of the Civil Liability Bill and the increase in the small track limit to £5,000 for RTA related claims.
This in turn will reduce legal costs and enable litigants to act in person, resulting in an estimated reduction of £35 (government figures) on the average motor insurance premium.