Motor Brief market insights - June 2020

A summary of key developments including an update on the practical implications of COVID-19 on the management of RTA litigation; the whiplash reforms; changes to the rules on statements of case, statements of truth, and witness statements; and consultations on e-scooter trials and the potential regulatory framework for micromobility vehicles.

COVID-19: practical issues for the management of RTA litigation

The COVID-19 pandemic has had significant implications for the court system in England and Wales, with resultant practical issues for the management of RTA litigation.

Measures have been put in place to ensure continuity and business as usual where possible, with the introduction of remote audio and video hearings, a new protocol and a new Practice Direction (51Y) under the Civil Procedure Rules, to support these.

Whilst technology is enabling a number of remote hearings to take place, an ever-increasing backlog of cases appears inevitable, and the approach taken by courts has differed. Some courts are conducting all hearings by audio or video. Other courts are only adopting this approach for interim hearings such as applications or Case Management Conferences, whilst some are adjourning the hearings altogether and asking parties to make written submissions on the areas in dispute before they are re-listed.

Contact: Ian Davies

Related item: COVID-19: the civil court system and practical implications for road traffic accident litigation

Whiplash Reforms

On 21 April 2020, the Lord Chancellor announced that the implementation of the Whiplash Reforms would be delayed from August 2020 until April 2021. This is the third postponement of the implementation date, which was initially set for April 2019. There was a significant question mark over whether the August 2020 date was realistic in any event, but the delay was rendered inevitable by the COVID-19 outbreak.

There is still much to be done if the reforms are to be implemented in April 2021:

  • The Civil Procedure Rule Committee (CPRC) has yet to finalise and publish the rules that increase the small claims track limit and introduce a new pre-action protocol.
  • The damages tariff for whiplash claims has yet to be finalised and secondary legislation will be necessary for it to be implemented.
  • The litigant-in-person portal (Official Injury Claim) has been built but is necessarily based on assumptions in the absence of rules, and new rules to be published by the CPRC may necessitate changes to the portal.
  • The Ministry of Justice has confirmed that there will be no provision for alternative dispute resolution within the portal. An alternative exit strategy will be required for claims that do not settle within the portal.

Contacts: Ian Davies and Nicola Hammerton

Related items:

The 113th Update to the Civil Procedure Rules – changes to the rules on statements of cases, statements of truth, and witness statements

The recently published 113th update to the Practice Directions that supplement the Civil Procedure Rules (CPR) include the following important amendments which came into force on 6 April 2020:

Statements of Case – CPR Practice Direction 16

The amendment introduces new obligations on a claimant claiming the cost of a replacement hire vehicle. There is now a requirement for claims that include “the cost of hire of a replacement motor vehicle following a road traffic accident”, for specific details relating to this element of the claim to be set out in the particulars of claim.

It remains to be seen whether the courts will go so far as striking out a claimant’s claim for failure to plead the credit hire claim in accordance with the new requirements under the amended Practice Direction. It would appear however, that given this new requirement, the courts may take a strong stance on any failures to comply with the new rule or poor pleading of any credit hire claim.

Contact: Philip Espline

Related item: New rules: pleading specific issues in relation to the hire of replacement vehicles

Statements of truth – CPR Practice Direction 22

The statement of truth underpins key documents in the civil litigation process.

Previously the form of the statement of truth under Practice Direction 22 was worded as follows:

“I believe that the facts stated in this [……………..] are true”

The form of the updated statement of truth has been strengthened, sending a more powerful message that a false statement may have very serious consequences and emphasising that the responsibility of ensuring that the contents of the document is true, rests with the maker.

Pursuant to paragraph 2.1. of Practice Direction 22 the following must now be inserted at the end of the statement of truth:

“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.

Contact: Huw Stephens-Jones

Witness statements – CPR Practice Directions 22 and 32

The summary on the Civil Procedure Rules online information (that can be found here) provides that the amendments to Practice Directions 22 and 32:

“represent a package of changes to address the issue of cases where a witness statement is presented in English but where, notwithstanding signature of the statement, the witness cannot speak English and the statement is not necessarily “in their own words”. The changes aim to make it possible for such cases to be identified much earlier in the process.”

The amendments include that a witness statement must now:

  • “Be drafted in the witness’s own language”, (paragraph 19.1(8) (and see also paragraph 18.1) of Practice Direction 32).
  • State “the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter” (paragraph 18.1(5) of Practice Direction 32).

The statement of truth must also now:

  • “Be in the witness’s own language” (paragraph 2.4 of Practice Direction 22).

In relation to witness statements that are in a language other than English or Welsh, paragraph 23.2 of Practice Direction 32 has been amended with the new wording as follows:

  • “Where a witness statement is in a foreign language –
    (a) The party wishing to rely on it must –
    (i) Have it translated; and
    (ii) File the foreign language witness statement with the court; and
    (b) The translator must sign the original statement, must state the date of translation and must certify that the translation is accurate.”

It remains to be seen what the courts’ stance will be towards failures to comply with the new rules. However, given the important nature of the changes it seems unlikely that the courts are going to be very sympathetic to anything less than a trivial breach.

Contact: Huw Stephens-Jones

Government consults on e-scooter trials and potential regulatory framework for micromobility vehicles

On 9 May the government announced that it was bringing forward e-scooter trials from next year to June this year (although the start date is awaited), opening a consultation (now closed) on legislation to enable trials of e-rental scooters. The proposed changes are to apply only to e-scooters that are used legally as part of (and for the duration) of those trials, with use of those not part of the trial remaining “illegal on the road, in cycle lanes and tracks, and on pavements”.

Consideration is being given to whether the trials are to be extended to other locations across the country, in addition to those proposed in the ‘4 Future Transport Zones’ - the West Midlands, the West of England Combined Authority, Derby and Nottingham, and Portsmouth and Southampton.

Running alongside this, the Department for Transport has launched a call for evidence, with a focus on the potential regulatory framework for micromobility vehicles (including e-scooters). Launched on 16 March, the call for evidence, which is part of the ‘Future of Transport Regulatory Review’ closes on 3 July 2020. Kennedys will be responding to this call for evidence and will continue to monitor developments.

Contacts: Roger Davis and Niall Edwards

Related item: E-scooters: the need for a new legal regime and the potential risks of prosecution

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