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Two days prior to the 2019 General Election we questioned whether the Whiplash Reforms were dead, dying or dormant. Since then, a significant Conservative majority and an indication from the Ministry of Justice of their continued commitment to the reforms should have led to the personal injury portal going live in April.
With calls for clarity on the implementation date having grown understandably louder, the announcement today that the portal will be pushed back to 1 August this year, will be widely welcomed. The news today has confirmed our long held belief that the reforms would need to be delayed. It seems that common sense has at last prevailed.
Despite the repeated mantra from the Motor Insurers’ Bureau that the build of the online portal (named Official Injury Claim) was on track, the reality of having in place the necessary legal framework has lessened with each passing day. It was clear to many that the absence of progress made by the Civil Procedure Rules (CPR) Committee would cause inevitable delay. The absence of any rules within the latest update of the CPR released earlier this year, was seen by many as a final nail in the coffin of an April go-live.
The pre-action protocol and civil procedure rules
Progress as to the pre-action protocol and rules providing the framework underpinning the reforms, including the increase of the small claims track, remains unclear. The secondary legislation necessary to implement the tariff of damages, with confirmation of what the tariff will be, is also awaited.
While the portal system is ready it must have been built on a series of assumptions, given the absence of the rules. The lack of rules was a major issue for claimant, defendant insurer and defendant lawyers alike. The delay now allows all sides to prepare for the implementation with a semblance of order, assuming that the rules are released shortly. To this end the statement from the Lord Chancellor and Secretary of State for Justice simply states that the necessary rules, pre-action protocol, and the statutory tariff, “will be published in sufficient time before implementation.”
Vulnerable road users, children and protected parties
The statement confirms that the new small claims limit will not apply to “vulnerable road-users” (for example, motor cyclists, cyclists and pedestrians) and children or protected parties, and will not be subject to a new pre-action protocol and will not have access to the new online portal. The fast track will continue to be the route for claims by such claimants that include a whiplash injury.
Alternative dispute resolution
The government’s proposal to include a form of ADR within the online process has fallen away, as “no practicable solution which gave sufficient coverage of ADR for claims could be found”. The statement adds that instead, the government will “ensure access to justice by developing processes to enable litigants to go to court to establish liability”. With the courts already under considerable strain, it seems inevitable that this will only serve to increase that pressure and delay the resolution of cases.
Comment
Postponing implementation of the whiplash portal will hopefully allow all interested parties sufficient time to make informed preparations, and to avoid what are likely to go far beyond teething problems.
Spare a thought for the litigant in person who is expected to navigate the new system and the rules from the date of implementation. Unless there is clarity shortly, an unintended consequence of the absence of rules and delay may be that claims management companies step into the void thereby immediately eliminating, in whole or in part, one of the stated aims of the reforms.
The rules committee and all other stakeholders cannot rest on their laurels during the delay. All parties desperately seek certainty and the ability to plan their operations around one of the biggest changes seen to the low value personal injury sector since the Woolf Reforms.
Related item: Whiplash Reforms – dead, dying or dormant?
United Kingdom