Personal Injury Brief market insights - June 2022
A summary of key developments including a political landscape roundup, an update on the Damages Claims Portal, the new sixteenth edition of the Judicial College Guidelines, and the reversal of Vnuk.
Setting the government agenda: the Queen’s Speech 2022
The scale of the legislative programme announced in this year’s Speech was striking. A total of 38 bills were included, compared to fewer than 30 in 2017, in the wake of Brexit and for a two-year programme.
The overarching themes were to cut EU red-tape in the post-Brexit era, deliver on levelling up and improve national safety and security.
However, uncertainty remains in some areas as to the detail and timing of bills, including the draft bills. And it wasn’t just the Queen who was missing from the Queen’s Speech. The Employment Bill did not feature on the agenda despite being under discussion since 2019 to address working conditions and pay in factories and warehouses. Nevertheless, for those bills that do not feature in the 2022/23 parliamentary sessions, they should at least be trailed via consultation and pre-legislative scrutiny which will at least allow discussion.
HMCTS postpones date for mandating defendants to use the Damages Claims Portal
On 30 May 2022, HM Courts and Tribunals Service (HMCTS) confirmed that changes to the Civil Procedure Rules (CPR) requiring defendant legal representatives to use the Damages Claims Portal (DCP) from 2 June 2022 have been postponed. HMCTS will announce a new date in due course.
Following confirmation in April 2022 that the DCP would become mandatory for claimant legal representatives, it was expected that changes to the CPR mandating the use of the DCP for defendants would follow quickly. Despite the delay, we are continuing to handle claims served on us in the DCP and look forward to HMCTS confirming a new date for mandatory implementation as soon as possible.
Related item: Damages Claims Portal: delayed for defendants
Newly published sixteenth edition of the Judicial College Guidelines
On 11 April 2022 the sixteenth edition of the Judicial College ‘Guidelines for the Assessment of General Damages in Personal Injury Cases’ was published. Among the key changes in the Guidelines, general damages for injuries of the utmost severity, categorised separately under ‘Very severe brain injury’ and ‘Tetraplegia’ are each now £403,990 (at the top end of the bracket).
Following the recommendation of the Independent Inquiry into Child Sex Abuse a new sub-category of psychiatric injury has been included within the Guidelines. Section (4)(c) provides the factors which are to be considered when assessing damages for the sexual and/or physical abuse itself, any psychiatric injury as well as case specific details regarding aggravating features.
In the context of lower value personal injury claims, the updated Guidelines provide RPI-adjusted figures for minor neck injuries (for application in quantifying claims for neck injury arising from non-motor claims as well as from road traffic accident claims excluded from the May 2021 whiplash reforms). There is also commentary on the new tariff based awards for claims brought within the Official Injury Claim portal, but what is considered an ‘exceptionally severe’ whiplash injury remains a matter for the judiciary to determine.
Compulsory motor insurance in the UK is no longer subject to Vnuk
The Motor Vehicles (Compulsory Insurance) Bill received Royal Assent on 28 April 2022, and the new Motor Vehicles (Compulsory Insurance) Act will take effect on 28 June 2022.
The new legislation has been introduced following an analysis of the cost of implementing changes to the Road Traffic Act 1988, following the 2017 decision in RoadPeace v Secretary of State for Transport and MIB. This decision confirmed that UK law was non-compliant with the Motor Insurance Directive.
The new Section 156A will nullify any retained EU law and effectively return us to the pre-Vnuk days of compulsory motor insurance only being required for a more restricted class of vehicles on a road or public place and not on private property. This new legislation will no doubt be welcomed by the insurance industry.