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A summary of recent developments including an upcoming statutory review of the whiplash tariff by the Ministry of Justice, a second call for evidence on the personal injury discount rate in England and Wales, the Civil Justice Council's consultation on the procedure for determining mental capacity in civil proceedings, and assessing mixed injury claims in the Official Injury Claim Portal.
Upcoming statutory review of the whiplash tariff
The Ministry of Justice launched a call for evidence on the statutory review of the whiplash tariff on 6 February 2024. The exercise is intended to gather up-to-date information to support the Lord Chancellor as part of the statutory review of the whiplash tariff introduced on 31 May 2021.
The Civil Liabilities Act 2018, which introduced tariffs for claims valued up to £5,000, requires the Lord Chancellor to review the amounts after three years. This first review will “assess the whiplash tariff and its component parts, as well as wider economic, sectorial and other changes since its introduction".
The call for evidence will run for eight weeks, closing on 2 April 2024.
Contact: Ian Davies
Related items:
- PI discount rate consultation closes ahead of 2024 review
- Personal injury discount rate: a global snapshot
- Personal injury discount rate in England and Wales: exploring the options
Personal injury discount rate in England and Wales – a second call for evidence
At a stakeholder event on 28 November 2023 hosted by the Ministry of Justice (MoJ), a second call for evidence on the personal injury discount rate (PIDR) in England and Wales was discussed. This call for evidence was launched on 16 January 2024.
The call for evidence does not suggest or recommend a preferred PIDR model/rate(s). Rather, it focuses on gathering as much empirical data as possible to assist the expert panel with advising the Lord Chancellor with further understanding claimants’ likely return on investment.
In terms of next steps, the consultation will close on 9 April 2024 and a response document will be published later in April. The data gathered from this exercise will inform the next formal review of the rate which must commence by 15 July 2024.
Contacts: Antony French and Lauren Gosnell
Related items:
- Personal injury discount rate: a global snapshot
- Personal injury discount rate in England and Wales: exploring the options
- Government response to Personal Injury Discount Rate Call for Evidence: an overview and next steps
Under review: the procedure for determining mental capacity
In December 2023, the Civil Justice Council (CJC) launched a consultation on the procedure for determining mental capacity in civil proceedings. The consultation will close on 17 March 2024. The consultation delves into:
- The nature of the issue of capacity and the role of the court.
- Identification of the issue – how capacity is brought to the attention of the court, and who should be responsible for investigating it.
- Investigation of the issue – what evidence the court needs to determine capacity, and what the role of the Official Solicitor is.
- Determination of the issue – how hearings to determine capacity should be conducted.
- Substantive proceedings pending determination – what steps should be taken pending a capacity determination by the court.
- Funding and costs - to ensure that vulnerable parties who may lack litigation capacity have access to justice.
Following analysis of the consultation responses, the working group will publish its formal response which will likely propose recommendations to improve the rules and practice directions.
Contact: Mark Burton
Supreme Court to rule on assessing mixed injury claims in the Official Injury Claim Portal
Following the earlier Court of Appeal decision in January 2023, the Supreme Court will hear the appeal in Hassam and another (Appellants) v Rabot and another (Respondents) on 20 February 2024. The appeal concerns the approach to be taken for the assessment of damages for pain, suffering and loss of amenity (PSLA) where the claimant suffers a whiplash injury captured under the Civil Liability Act 2018 (and the tariff set out in The Whiplash Injury Regulations 2021) and an additional injury which falls outside the scope of the Act and the whiplash tariff.
With approaching 50% of Official Injury Claim Portal cases having an element of non-tariff damages, the impact of the decision will be potentially extensive for insurers. Any upward movement, coupled with the 17th edition of the Judicial College Guidelines (JCG) due to be published in April 2024, further increasing inflationary pressure on general damages, could create a real issue for insurers.
Contact: Ian Davies
Related item: The Court of Appeal’s decision on ‘mixed injuries’ cases
United Kingdom