The Ministry of Justice (MOJ) has published amendments to the civil procedure rules, which will come into force on 1 October 2014, with a promise of further amendments in due course.
The Civil Procedure (Amendment No. 6) Rules 2014 will give effect to some of the recent Government proposals aimed at tackling fraudulent personal injury claims by focusing on controlling medical evidence.
Definition of soft tissue injury
The amendments to the personal injury regime are restricted to soft tissue injury claims. The rules will set out the definition of a soft tissue injury as:
‘… a claim brought by an occupant of a motor vehicle where the significant physical injury is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.’
This definition goes some way to ensure that claimants are unable to avoid the restrictions of the amendments by simply including a lesser psychological injury such as travel anxiety.
Fixed fees for medical evidence
CPR 45.19 sets out a system of fixed fees for medical evidence. The fee for a standard medical report will be fixed at £180 (plus VAT where applicable). There will also be a fixed cost for specialist reports, medical records, addendum reports and responses to Part 35 questions. If the claimant obtains a medical report outside of the fixed fee scheme, the cost will not be recoverable.
A single report
Claimants will generally be restricted to one expert medical report. If the claimant wishes to rely on further medical evidence or step outside of the fixed fee regime, they will need to provide justification to the court for permission to do so (CPR 35.4 (3B)).
Medical expert to be impartial
Experts will not be allowed to provide, or offer to provide, treatment to a claimant, and if they do so they will forfeit their fee (CPR 45.19 (2B)). This is intended to remove any incentive for the expert to recommend treatment that is not strictly necessary.
Medical expert to be provided with defendant’s version of events
The defendant will be given an opportunity to provide their own version of events to the claimant in response to a claim, even when liability is admitted in the portal. Any insurer who provides an account on behalf of the defendant must have written authority from the defendant to do so. The claimant must provide the defendants account to the medical expert and the expert should consider both versions of events when providing a diagnosis and prognosis.
Controlling pre-med offers
Pre-med offers will not be banned. Any offer made before a medical report is served will have no costs consequences until the report is served (CPR 36.10A (5A)).
While it is good to see many of the proposals made over the last few months being put into action, there is still work to be done in order to really strengthen the system against fraudulent claims and reduce costs. One ongoing area of debate is use of the term ‘fundamental dishonesty’ and it is perhaps disappointing to note that the MOJ have not also taken the opportunity to review CPR 44.16 following Gosling- v- Screwfix to provide a definition of ‘fundamental dishonesty’ in the context of qualified one way cost shifting. That said, this is perhaps understandable, given the continuing debate over this phrase in the House of Lords in respect of the Criminal Justice and Courts Bill - a battle which seems likely to rumble on for some time.
The MOJ have said that they intend to implement further measures in due course to focus on accreditation and financial independence of medical experts - although have not indicated how these will work in practice. In the meantime, these amendments will hopefully go some way to tackle fraudulent whiplash claims by controlling costs and quality of evidence.