With the long-awaited whiplash reforms and portal delayed again, what does the MoJ still need to do before they finally arrive? Qamar Anwar, managing director of First4Lawyers, takes a look
It would be wrong to accuse the Ministry of Justice (MoJ) of never listening. The fact that the whiplash reforms have now been put back four times—most recently by a month to May 2021—shows that it does understand at least that all sides of the personal injury market need the now-fabled minimum of three months to prepare for the new regime when (if?) the new court rules are finally published.
I would suggest that all stakeholders most probably need more than three, especially as we are in the depths of lockdown, but let’s put that to one side for a moment.
Readers will all know how claimant groups view these reforms. Our arguments are often dismissed for being self-serving, although surely that cuts both ways. But shortly before Christmas, a group of claimant and defendant representatives, as well as judges—convened by the non-partisan Civil Justice Council—came together to highlight a worrying list of concerns about the changes in a report on possible further reforms for low-value (under £25,000) personal injury claims.
This was no claimant love-in. Chaired by Nicola Critchley, a partner at defendant law firm DWF, the working group’s members included two representatives of the Forum of Insurance Lawyers, one from the Association of British Insurers and one from NHS Resolution.
It warned that the absence of measures to handle credit hire, credit repair and rehabilitation in the new Official Injury Claim portal “could result in a claimant with a modest claim under one of those headings being forced to bring conventional small claims track proceedings for a modest sum (a few hundred pounds), tying up court resources but potentially waiting around 40 weeks for a hearing to take place”.
The average litigant in person may well struggle to understand which parts of their claim should be dealt with through the portal and which parts cannot, or which parts will be handled by a third party under an industry agreement, the group said.
I suspect that this question of dealing with claims involving both tariff and non-tariff injuries is going to dog the new regime—the MoJ’s suggestion that the courts should decide through a test case will cause huge delays and problems for all.
Who is going to explain to the lay person that their own claim is stayed for the next year while a legal argument is had on another claim that has nothing to do with them—as will happen in test case litigation? Good luck with that!
The report states that the rules have to be drafted in such