Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘whiplash injuries

Prisons and Courts Bill 2017: new version awaited

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One of the casualties of the calling of the General Election in June 2017 was that the Prison and Courts Bill 2017 was lost – i.e. failed to complete its Parliamentary process.

I have noted in earlier blogs the key features of this important legislation, both in relation to the reform of the Prison Service and to the Civil Justice system. It also planned to deal with rules relating to whiplash injuries (see entries in Spotlight on the Justice System 8 March 2017.)

It is clear from announcements in the Queen’s speech – delivered in June 2017 – that the Bill will be introduced, not necessarily in the same form but with the same policy objectives in mind.

For the moment, therefore, plans are on hold (though civil servants are actively working on the assumption that eventually they will get the new legal powers they need to introduce the proposed reforms.)

I will give further details when the new Bill is published.

Dealing with whiplash injuries: the Prisons and Courts Bill 2017

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For some time the Government (under pressure from the Insurance industry) has been concerned about the numbers of claims and the aggregate amount of those claims for minor injuries arising from Road Traffic Accidents.

Between November 2016 and January 2017 the Government consulted on a package of measures to tackle the continuing high number and cost of whiplash claims and their impact on motor insurance premiums.

The Government’s  concern was that the volume of road traffic accident related personal injury claims has remained static over the last three years and is over fifty per cent higher than 10 years ago (460,000 claims registered in 2005/06 28 compared with 770,000 in 2015/16) despite a reduction in the number of road traffic accidents reported to the police and improvements in vehicle safety, for example better head restraints.

It was noted that similar improvements in vehicle safety in other jurisdictions have led to a reduction in both the number of claims and motor insurance premiums.

The Government’s view is that the continuing high number of low value claims increases the cost of motor insurance premiums, paid by motorists in England and Wales.  The Government has set out its view that the level of compensation paid to claimants for these claims is also out of proportion to the level of injury suffered. It has therefore decided to  introduce measures to disincentivise minor, exaggerated and fraudulent claims.

Part 5 addresses this matter.

Clause 62 enables the Lord Chancellor to specify in regulations, in the form of a tariff, the damages that a court may award for pain, suffering and loss of amenity (“PSLA”) for relevant whiplash injuries sustained in road traffic accidents,  in those cases where the duration of the injury does not exceed or is not expected to exceed two years. The tariff will provide for an ascending scale of fixed sum payments with the relevant tariff for a particular case identified by reference to the severity of the injury. Regulations may specify different sums for different descriptions of injury.

There will be  power to deviate from the tariff in exceptional circumstances.

Clause 64  bans regulated persons (basically solicitors and barristers, legal executives and alternative business structures) from making or accepting a payment in settlement, or inviting, or offering to settle an RTA related whiplash claim without appropriate medical evidence.

Whether these changes will actually lead to any reduction in insurance costs is currently hard to determine, particularly given other recently announced changes that may result in a general increase in awards of damages for personal injury.

Written by lwtmp

March 8, 2017 at 12:12 pm

Compensation culture: cutting down ‘whiplash’ claims

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Those who argue that a compensation culture has developed in our society – with too many people willing to seek compensation for things that have happened to them – often point to the numbers of claims made for soft tissue injuries occurring in road traffic accidents (RTAs), commonly referred to as ‘whiplash claims’

In 2015, the Government announced that it wanted to reduce the incentives on people bringing whiplash claims. It has now published a consultation paper setting out its ideas in more detail.

The package includes measures to tackle the high numbers of minor RTA related soft tissue injury claims by either:

 (a) i.removing compensation for pain, suffering and loss of amenity (PSLA) following an accident or
ii. reducing compensation for PSLA by setting a fixed amount payable (£400 or
£425 if there is a psychological element) for these types of claim.
(b) reducing compensation for PSLA for other RTA related soft tissue injury claims
where recovery takes longer than for those covered by measure (a) above through
the introduction of a set tariff of compensation;
(c) raise the small claims limit for all personal injury claims to £5,000 (by reference to
the value of the PSLA element of the claim). This would have the effect that the
legal costs of such claims would no longer be recoverable from defendants in the
majority of soft tissue injury claims, although certain costs arising from litigation
(for example the costs of issuing the claim) and a number of disbursements (for
example the cost of the medical report) could still be claimed by a successful
claimant; and
(d) ban pre-medical offers to settle RTA related soft tissue injury claims, so in future
claims could not be settled without medical evidence provided by MedCo accredited practitioners.

 

Measures (a), (b) and (d) will require primary legislation and the government intends to legislate as soon as parliamentary time allows.Measure (c) requires changes to the Civil Procedure Rules (CPR). There will also need to be amendments to relevant Pre-Action Protocols including the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

It is argued that these changes could reduce the cost of insurance claims by around £1bn annually.

The Consultation will provoke strong views, and are likely to be fiercely resisted, particularly by those who represent claimants. If implemented, the reforms could also have significant impact on Claims Management Companies.

The outcome of the consultation is not yet clear, nor, importantly is it clear when time for the required legislation could be found. But it is an issue that is unlikely to go away, even if implementation is still some time off.

The Consultation can be found at https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/

 

Written by lwtmp

November 23, 2016 at 11:02 am