Whiplash reforms delayed AGAIN

The Lord Chancellor today announced yet another delay to implementation of the whiplash reforms, pushing the date back a month to May this year.

Lawyers have reacted by arguing that more time is needed, given the outstanding issues.

The reforms were first meant to come into force in April 2019, before being pushed back to April 2020, then October 2020 and finally April 2021 in light of the coronavirus crisis.

The supporting rules and pre-action protocol have still not been published and three months between that happening and the go-live date is seen as the bare minimum required for the industry to prepare.

In a written statement to Parliament, Robert Buckland said the Ministry of Justice (MoJ) “continues to work” with the Civil Procedure Rule Committee to finalise the rule changes, while the Motor Insurers’ Bureau “continues to make excellent progress on the build of the Official Injury Claim Service”.

He continued: “I do however acknowledge the challenges experienced by all this year in the face of the pandemic. I said at the time of my April statement that the Government will continue to monitor developments in relation to the current pandemic and will, if necessary, make further announcements in regard to the implementation of these important reforms.

“So we have listened carefully to the concerns raised by stakeholders, in particular the need for as much notice as possible to take the necessary steps in anticipation of these reforms and to prepare their businesses for the changes to how small road traffic personal injury claims are managed.

“We understand the importance of industry preparedness and, after consideration, it is for that reason we have decided to allow an additional short period of time to further accommodate this. As such, we will implement the Whiplash Reform Programme in May 2021.”

Mr Buckland stressed that delivering the reforms “remains a key government priority”.

Sam Elsby, president of the Association of Personal Injury Lawyers, said: “Work on the new system has been dangerously compressed to meet this artificial deadline, so we welcome any delay which is used to address our concerns about outstanding issues of critical importance to injured people.

“We need to know exactly how the proposed new ‘bespoke’ court process will replace ADR; we need to know the outcome of consultation with the Lord Chief Justice about the new whiplash tariffs, and there needs to be clarification about how mixed claims will be handled in the new system.

“Furthermore, the public must be properly informed well in advance about the new system that claimants will have to use when they are injured.”

On Twitter, the Motor Accident Solicitors Society said: “With key issues outstanding, new rules not yet finalised or published & a worsening backlog of court cases, more time is needed. The reforms should not be rushed or introduced half-baked.”

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations described the decision as “inevitable”, but said it raised a broader point.

“It is abundantly clear that trying to deliver this project in relative isolation from experienced industry practitioners is not working. Now that we face more delay, ministers must rethink the route to market for the whiplash reform programme and get the claims sector much more involved…

“By working in a spirit of compromise, there’s every chance we can deliver a solution that’s fit for purpose.”

Mr Maxwell Scott said this included setting out a timetable to restore alternative dispute resolution to the plans and ensuring rehabilitation was a central part of the process.

“The MoJ also needs to tidy up a number of other issues, such as helping litigants in person value non-tariff injuries and undertaking thorough and independent consumer testing.

“Minsters must also remember that mobility is an important element to the claim so credit hire and repair must be properly accounted for in the process.

“There’s no going back, but as things stand we’re not really going forward either, so let us help the government get the portal right.”

Donna Scully, director at Carpenters Group, said: “Only allowing an extra month when we have yet to see the new rules is unreasonable both for those trying to develop a workable process once we have the rules and for customers who need the system to work from the start.

“Amending a process already up and running is much harder as we learnt with the Medco system. The new claims process must be fully fit-for-purpose when launched to smooth the transition and to minimise the increased risks of fraudulent behaviour.

“There are significant dangers if there is a rush to implement too early.”

Tom Jones, head of policy at Thompsons Solicitors, said: “These further delays to the whiplash reforms by the justice secretary are a case bowing to the inevitable. Whatever they may say publicly, delay will be a relief for insurers given the reforms are nowhere near ready.

“The logical next step is to remove the proposed increase in the small claims limit for employer and public liability from the equation; workplace injury claims have never been the target and the unnecessary increase makes delivery of the whiplash agenda significantly more complex.”

Speaking at November’s PI Futures event, David Parkin, deputy director of civil justice at the MoJ, said the plan was to lay the draft whiplash injury regulations – detailing the compensation tariff, the uplift a judge can impose and the ban on pre-medical offers – early this year. This will be by affirmative resolution, meaning there will be a debate in Parliament.

The new rules, including raising the small claims limit to £5,000, will be introduced via a negative resolution, meaning it becomes law unless a motion to reject it is passed by the House of Commons within 40 days.

Mr Parkin said the tariff, a draft of which was published in 2018, would be uprated for inflation but predicted the figures would otherwise not change much. He described them as “proportionate and fair” for the types of injuries involved.

He also said that the question of how minor non-whiplash injuries would be dealt with could be determined by a test case before the courts.

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