'Get whiplash done': Government delays reforms again

The Justice Secretary’s announcement of further delay to the whiplash reforms, blaming the challenges of the pandemic, has been met with mixed reactions within the sector. 

In a written statement, Robert Buckland said the whiplash reform programme will now be implemented in May to accommodate “industry preparedness”.

However, the support rules and pre-action protocol have not been finalised and no further details were given.

Pointing out the fact that the proposed changes precede the pandemic, Qamar Anwar, managing director, First4Lawyers commented: “The fact that the government is still not in a position to provide the necessary detail raises questions about the validity and evidence base around these reforms. 

“While it is encouraging that [Robert Buckland] recognises the importance of industry preparedness, I would remind him that without the pre-action protocol and practice directions governing the new regime that businesses can do very little to prepare. 

The lack of a clear timetable is, said Anwar, “both predictable and lamentable”. 

“Now might be the time for the Ministry of Justice to remind itself of its objectives, namely: ensure access to justice in a way that best meets people’s needs and support a flourishing legal services sector”, he added. “These reforms fly in the face of both.”

Not everyone was disappointed with the announcement. 

Ian Davies, head of motor at Kennedys LLP, described the month-long delay as “sensible” but said the rules themselves are urgently required.

He commented: “All parties, be they lay claimant’s, claimant lawyers, insurers, claims handling companies or defendant law firms, will need at least three months to update and amend their systems to accommodate the new rules.

“The delay should not delay the release of the rules, the more time all parties have to consider the rules and implement system changes will make for a smoother implementation for all.”

Association of Personal Injury Lawyers president Sam Elsby said: “Work on the new system has been dangerously compressed to meet this artificial deadline, so we welcome any delay which is used to address our concerns about outstanding issues of critical importance to injured people.

“We need to know exactly how the proposed new ‘bespoke’ court process will replace ADR; we need to know the outcome of consultation with the Lord Chief Justice about the new whiplash tariffs, and there needs to be clarification about how mixed claims will be handled in the new system.”

He also said the public must be properly informed well in advance about the new system that claimants will have to use when they are injured.

Law Society head of justice, Richard Miller, said the decision “provides welcome pause for thought and much-needed clarity” and highlighted several outstanding important policy decisions around how the portal will work. 

“For example”, he added, “the government will need to give further guidance on how cases will be handled consistently where there are reciprocal claims from the two drivers, or where there is one vulnerable user who is exempt from the new portal – such as a child, cyclist or pedestrian – and one who isn’t and has to use it.”

Miller said both claimant and defendant solicitors, and the general public, will need enough time to understand and adapt to the new rules. 

“The middle of a pandemic is a bad time to expect them to do so”, he added.

Nigel Teasdale, past president of the Forum of Insurance Lawyers (FOIL) and partner at DWF, said: “’Get Brexit done’ has been superseded by get whiplash done’, although perhaps not as headline grabbing.”

Highlighting the ongoing lack of clarity, he observed: “It isn’t entirely clear whether the new rules and portal will apply to claims arising from accidents after 1 May or some later date in May.”

He said that is likely to depend on when the rules are published.

He added: “[This] is likely to be at the end of this month or early February with the Civil Procedure Rule committee having a meeting scheduled for the 5 February which would give the 3-month period of preparation previously requested by all parts of the industry.
 
“While technically this is a delay on the previously announced date of April 2021, that date has looked unlikely for some time and the delay is not as long as some had predicted.
 
“That means inevitably there will be some gaps and or areas of controversy in the new rules once they are released.”
 
Once the rules are signed off, he said we can expect to see the secondary legislation regulations laid before parliament for several matters, including the increase in the small claims limit to £5,000 for certain Road Traffic Act injury claims; implementation of the tariff; the ban on pre-medical offers; and the definition of whiplash.

“But no surprises are expected”, added Teasdale.

He expected to see the final tariff around the end of January, “with the likelihood that any changes to the previous draft tariff will be minor still leaving the thorny issue of non-tariff damages outstanding amongst other issues”.