Whiplash portal causes concern over access to justice and compensation 

The draft statutory instruments and pre-action protocol outlining the rules and tariffs for the new so-called ‘whiplash portal’ have caused concern that claimants will be entitled to less compensation than previously. 

The Whiplash Injury Regulations 2021 will come into force on 31 May 2021 and will apply to all claims where the accident occurs on or after 31 May. The whiplash portal will launch on the same date. 

While the Law Society’s head of justice, Richard Miller, welcomed the clarity offered by having a confirmed launch date, and the fact that changes are not going to be made to employer’s liability and public liability claims, he also expressed concern that the compensation tariffs for whiplash have been set far lower than the Judicial College Guidelines currently allow. 

He also warned that solicitors and other key stakeholders “urgently” require information on how the portal will work in practice, to prepare for the changes. He said: “… more information is needed on how easy to use the court process will be for claimants if the insurer denies liability or if they want to challenge their level of compensation”. 

Miller’s main concern is that the portal potentially raises “significant” access to justice concerns. He added: "People who have been injured through no fault of their own will now be entitled to less compensation and – in many cases – will not have a solicitor to help them through the claims process. 

“Without legal advice, many people may be unaware of how they can bring their claim in the first place.”

Adam Horner, partner and head of sports and serious injury at McHale&Co Solictors, shares Miller’s concerns. His view is that the reforms are “ridiculously draconian”. He said:

“Asking someone who has no knowledge of the legal system to claim directly against an insurance company puts them at a massive disadvantage and is certainly not fair access to justice.

“People who are innocent victims of a car crash will be left vulnerable, confused and at a huge disadvantage by asking an insurance company to make a ‘fair’ offer without any legal assistance and without knowing what is ‘fair’”.

He acknowledged that there are a “very small number of people who try to abuse the system…but significant punishments have come in for these claimants, including large fines, adverse costs orders and even imprisonment. These have gone a long way to deter such bad apples from claiming.”

Horner is sceptical that “promised” lower insurance premiums will ever materialise “to the tangible benefit to the man on the street”. He added: “Insurance companies will simply get even richer”.

He acknowledged that the government has faced issues beyond its control over the last year, but said that this change in the law will significantly impact those working in the personal injury industry, putting “tens of thousands of claim handlers… out of jobs”.

Horner added that the court system is in “a state of disarray” and suffering from “huge” delays. His view is that introducing new procedures at this time is “counterproductive” and will only further add to delays. He said:

“Courts will be swamped by claimants trying to prepare their claim for a court trial on their own against an insurance company who has very large resources. David vs Goliath is an understatement.”

The Law Society plans to continue to challenge the government to ensure the portal is fit for purpose and claimants have access to justice.