Harris Kyriakides | View firm profile
The much-expected UK whiplash reforms introduce a new procedure for claims concerning soft tissue injuries from Road Traffic Accidents (RTAs), ultimately aiming to root out minor, exaggerated and fraudulent claims, and to reduce motor insurance premiums. Successful implementation of the reforms, which are now edging closer, may encourage common law jurisdictions including Cyprus to follow a similar path.
In November 2015, UK Chancellor George Osborne laid out proposals to reduce RTA claims involving minor injuries as well as motor insurance premiums through the (i) removal of general damages for soft tissue injuries; and (ii) reduction of legal fees by increasing the benchmark of small claims track related to personal injuries from £1,000 to £5,000. The proposed 2015 reforms targeted the so-called ‘whiplash injuries’.
Whiplash is defined under the Civil Liability Act 2018 (CLA) as ‘…a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder’. It is estimated that 1,500 claims involving whiplash injuries are made in the UK per day, with an estimated cost for the economy of more than £2 billion.
Under the proposed 2015 reforms taking place in the UK, general damages will be substituted by set tariffs that will depend on the type of injury, however, the value of these set tariffs is yet to be determined. Meanwhile, increasing the personal injury benchmark in the small claims track to £5,000 will effectively mean that most RTAs will now proceed under this track, which in most cases does not entail the losing party paying the successful party’s legal fees. This in turn is expected to decrease the rising cost of motor insurance.
The whiplash reforms include the creation of a dedicated portal now being developed by the Motor Insurers Bureau (MIB), called the Official Injury Claim Service, which will allow claimants to file their claim online. A Pre-Action Protocol (PAP) is also being prepared in conjunction with the Civil Procedure Rule Committee (CPRC). A PAP is a common feature of personal injury claims, enabling parties to potentially reach out-of-court settlement. Crucially, this new PAP will ban settlement of claims prior to medical assessment (pre-medical offers).
The UK whiplash reforms, originally intended to come into force in April 2019, have been pushed back several times (April 2020, October 2020, and April 2021) due to the COVID-19 pandemic. The additional 1-month postponement to May 2021 was justified by Lord Chancellor Robert Buckland for providing stakeholders ‘as much notice as possible to take the necessary steps in anticipation of these reforms and to prepare their businesses…’. One may also credit the delays to the exhibited backlog of court cases owing to the COVID-19 pandemic.
On 22 January there was a meeting of the CPRC to consider the draft PAP and its annexes, which yielded a recommendation that the Master of the Rolls approves the draft PAP. Additionally, the CPRC resolved to co-opt additional members on to the sub-committee with up-to-date knowledge and practical experience to assist with drafting the Standard Directions anticipated to form a part of the proposed new Practice Direction (PD).
The outcome of the meeting of the CPRC suggests that the implementation of the reforms is now within sight, as the confirmation of the PAP by the CPRC was considered key by many stakeholders, given its central role in the claim process. However, outstanding issues remain, such as the confirmation of the associated rules and PD, a confirmation of the tariff, a clarification on the handling of mixed tariff and non-tariff damages claims, and a clear outline of how this ‘bespoke court process’ will replace Alternative Dispute Resolution. These issues need to be addressed expediently if the whiplash reforms are not to suffer yet another delay in implementation.
The UK whiplash reforms undoubtedly place an additional hurdle on prospective claimants, who will now think twice before instructing a lawyer whose fees may not be fully recovered in the event the claim is successful. In view of the foregoing, prospective claimants may be discouraged to advance un-meritorious claims due to, amongst other factors, the potential complexity of personal injury claims and the underlying substantive law, as well as associated difficulties such as establishing breach of the duty of care and putting together the required evidence. The proposed tariff is also bound to reduce damages, which constitutes a further disincentive. Moreover, these reforms place soft-tissue injury RTA victims on a separate procedure compared to other prospective claimants, potentially raising issues over the proper administration of Justice. Given the prominence of UK law and its influence in Common Law jurisdictions including Cyprus, one hopes the UK has not pushed the agenda too far, leading to an effective eradication of minor RTA claims.