31st of May 2021 is probably marked in every personal injury practitioner’s diary. The long-awaited whiplash reforms have finally been confirmed to come into effect on 31st May 2021. The reforms were first proposed in 2015 but their implementation has been delayed a number of times. Despite the Covid-19 disruptions, the wheels of justice have continued to spin and we can all say goodbye to whiplash claims as we know them.
What can we expect?
- Reduced Compensation: The draft regulations, which can be found here , suggest that general damages for whiplash injuries which last less than 2 years (“the tariff amount”) will be awarded at a significantly lower level to what the Judicial College (JC) Guidelines currently suggest. For example, the 15th edition of the JC Guidelines suggests an upper limit of £2300 for a typical 3-month whiplash injury. The regulations offer a mere £240, unless there are ‘exceptional circumstances’ which may justify a 20% uplift. For additional minor psychiatric injuries suffered on the same occasion, a claimant might expect to recover £260 under the new rules.
- A New Limit: The reforms will increase the general damages Small Claims Track limit for RTA injuries from £1000 to £5000; and £2000 for employers and public liability claims. This will apply to accidents on or after the 31st of May 2021. However, Claims involving children and others who lack capacity will continue to be allocated to the Fast Track regardless of their value.
- Do-It-Yourself: Given that legal representatives who take on personal injury claims below £5000 will not be able to recover their costs, there is bound to be an increase in claimants without legal representation. The new Claims Portal, Official Injury Claim, will offer accessibility to those who are forced to do it themselves. It is hoped that litigants in person will be able to lodge their own claims electronically and even contact a government help centre, should they need assistance in navigating the portal.
Many claimants will have to navigate complex legal processes without legal support. They will also have to incur their own costs by obtaining medical evidence to support their claim. The way in which their injuries were caused may also create unfairness under the new rules. Claimants who have suffered identical injuries would recover vastly different compensation because one person happened to be in a car while another person was injured at work.
The reforms may limit access to justice due to the lack of legal support for claimants who have been involved in an accident through no fault of their own. Only time will tell whether the presumed benefit for insurers and motorists will be outweighed by increased staffing costs, an inevitable consequence of dealing with more litigants in person who are less familiar with the litigation process.
Whilst the insurance industry may welcome these changes which are expected to control the cost of whiplash claims, claimants and claimant solicitors alike await more clarity about how the portal will work in practice.