Personal Injury Brief: market insights - June 2024

A summary of key developments including the review of the whiplash tariff; the introduction of mandatory mediation in the small claims process; changes to the fixed recoverable costs regime; and the release of the 17th edition of the Judicial College Guidelines.

Review of the whiplash tariff completed but not yet published

On 22 May 2024 the Lord Chancellor announced that he has completed his review of the Whiplash Injury Regulations 2021 “following careful consideration of the available data and evidence, including submissions to the “Statutory review of the Whiplash Tariff” call for evidence.” However, with the upcoming general election and dissolution of Parliament, it is unclear whether the review will be published this month as expected.

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 i.e. by 31 May 2024. This first review is intended to “assess the whiplash tariff and its component parts, as well as wider economic, sectorial and other changes since its introduction".

Contact: Ian Davies

Compulsory mediation in the small claims process

Mediation is now compulsory for the small claims process for cases filed from 22 May 2024 valued under £10,000. Starting with specified money claims, the government’s intention is to roll out compulsory mediation to all standard claims issued under Part 7 of the Civil Procedure Rules, and damages cases, with no exemptions. 

The mediation requirement for cases submitted through Online Civil Money Claims (OCMC) will be introduced later this year. Until then, parties can opt out.

This development marks a shift in how parties approach dispute resolution, with the hope that more claims will settle at an earlier point in time.

On the wider topic of promoting alternative dispute resolution and the role of the courts, in April 2024, the Civil Procedure Rules Committee also launched a consultation following Court of Appeal’s decision in Churchill v Merthyr Tydfil [2023]. The consultation, which closed on 28 May 2024, focused on using and promoting ADR methods.

Kennedys will be running courses for our lawyers to train as mediators as part of our commitment to this direction of travel.

Related items: 'Alternative’ dispute resolution: key developments in 2024

Contacts: Ian Davies and Ben Appleton

Recent changes to the fixed recoverable costs regime

On 6 April 2024 various amendments to the extended fixed recoverable costs (FRC) regime came into force. This followed the Ministry of Justice’s consultation process, the response to which was published in February 2024.

These changes are largely expected and uncontroversial, but there is potential for unwelcome uncertainty given the change to CPR rule 45.1(3b) which appears to open the door for contracting out of FRC.

The MoJ has committed to reviewing the extended FRC regime in October 2026, including the tables of costs. It also plans to consult on the impact of the rules on vulnerable parties by no later than October 2026.

You can find our FRC calculator here. This helps calculate and forecast the amount of legal costs a winning party can recover from a losing party at different stages of a claim.

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Contact: Lewis Thompson

Judicial College Guidelines 17th edition: the rise of inflation

The release of the 17th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JC Guidelines), has highlighted an average increase of approximately 23% for awards for pain, suffering and loss of amenity (PSLA) when compared to the 16th edition.

As the increases were calculated as at August 2023, any inflation thereafter is to be added to the guideline figures. As such, there may be disagreement between the parties around the extent of the further increase. 

Acknowledging the on-going debate around the use of RPI versus CPI (Consumer Prices Index), the editors state that it is not for them “to prescribe a different inflationary index from that which is judicially approved and adopted by the courts dealing with personal injury claims.” Therefore any challenge must be made in the courts.

Following the recommendation of the Independent Inquiry into Child Sexual Abuse, a new sub-category was included within chapter four of the 16th edition. The 17th edition has expanded on this sub category to encompass a broader range of physical and sexual abuse related injuries. Now there are four categories:

  • Severe (£109,830 to £183,050)
  • Moderately severe (£54,920 to £109,830)
  • Moderate (£25,100 to £54,920)
  • Less severe (£11,870 to £25,100)

Whilst the two lower categories have increased by 22% for inflation, the rise from the previous highest figure of £120,000 to £183,050 represents a 34% increase. When the lower end of the ‘severe’ bracket in the 16th edition is compared to the 17th edition, there is an increase of 144% from £45,000 to £109,830.

Defendants and compensators have been braced for the release of the 17th edition, and in many cases, have included inflationary increases in their reserves. To date, we have seen withdrawals of Part 36 offers in the motor space but not in other areas where liability may be more often a live issue.

Contacts: Carol Dalton and Ian Davies

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