Whiplash Reforms: 10 key points

The Government has now published the set of Regulations which provide the detail of the whiplash reforms. The amendments to the Civil Procedure Rules, including the new Pre-Action Protocol and Practice Direction 27B- Claims Under the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents- Court Procedure have also now been published. Here are 10 key points to take away from the newly published information:

1. 31 May 2021

The Protocol applies to road traffic accidents which occurred in England and Wales on or after 31 May 2021. For road traffic accidents before 31 May 2021, the £1,000 small claims track limit for personal injury claims will continue to apply.

2. New Small Claims Track Limit

The Protocol applies where the Claimant values the overall claim at not more than £10,000, and the claim for damages for injury at not more than £5,000. The value of any non-protocol vehicle costs is excluded for the purposes of valuing the claim.

Vehicle costs include the pre-accident value (“PAV”), repairs, excess, hire, and recovery and storage. Protocol vehicle costs are vehicle costs which: (a) at the time the claim is made, have been paid by the Claimant personally or by an individual on behalf of the Claimant; (b) in the case of PAV, are claimed by the Claimant personally and not payable by the Claimant to the Claimant’s insurers; or (c) in the case of repairs, are subject of an estimate of the costs the Claimant intends to pay personally. Non-protocol vehicle costs are vehicle costs which would be payable by the Claimant to third party organisations/businesses out of damages recovered. Subrogated claims where the insurer has paid out and credit hire claims are likely to fall into the non-protocol vehicle costs category.

3. Claims where the Protocol does not apply, Children and Protected Parties

Not all claims arising from road traffic accidents fall under the Protocol. The Protocol does not apply to claims:

1. in respect of a breach of duty owed to a road user by a person who is not a road user, for example a car going over a pothole on a road;
2. where the injuries were at least partly caused by a breach by the Defendant of at least one of the relevant provisions as defined by s53 of the Health and Safety at Work etc Act 1974;
3. to the MIB pursuant to the Untraced Drivers’ Agreement 2017 or any subsequent or supplementary Untraced Drivers’ Agreements;
4. where the Claimant was a vulnerable road user. Vulnerable road users are motor cyclists, pillion passengers, sidecar passengers, wheelchair/mobility scooter users, cyclists, horse riders and pedestrians.
5. where the Claimant or Defendant acts as a personal representative of a deceased person;
6. where the Claimant is a child;
7. where the Claimant or Defendant is a protected party;
8. where the Claimant is bankrupt; or
9. where the Defendant’s vehicle is registered outside the United Kingdom.

For those claims, the small claims track personal injury limit of £1,000 still applies. If the claim is made by a child or protected party and is for or includes a claim for a whiplash injury, the normal track will be the fast track, and must not be allocated to the small claims track.

4. Liability

The Claimant can upload photographs, sketch plans, witness statements, dashcam footage/video clips or any other documents in support of their claim that the Defendant was at fault for the accident anytime up to the point where the Claimant creates the Court Pack. The Claimant should normally allow at least 10 days for new evidence to be considered before starting proceedings.

The Compensator has 4 options: (i) admit liability in full; (ii) admit liability in part; (iii) deny liability; or (iv) admit fault but dispute the accident caused any injury to the Claimant. If the Compensator fails to provide a response within the time limit, liability will be taken to have been admitted in full. If the Compensator denies liability in full or in part, their response on liability must set out the Defendant’s version of events and provide any information in support- including photographs, witness statements and dashcam footage. The Compensator can upload evidence until the point the Compensator responds to the contents of the Court Pack.

The Claimant then needs to start proceedings using the procedure under Practice Direction 27B. If the court decides the Defendant is liable for the accident in full or in part, the court will stay the proceedings and the claim will then go back into the Portal to comply with the quantum steps of the Protocol.

5. Medical Reports

The instructions to be sent to the medical expert for the first medical report must:

1. provide the Claimant’s description of their injuries entered on the Portal;
2. provide the Claimant’s responses about whether they consider their whiplash injuries to be exceptionally severe or if there are any exceptional circumstances that have had an impact on their pain, suffering and loss of amenity.
3. state if the Compensator disputes that the accident caused any injury to the Claimant and their reasoning;
4. state if the Compensator argues that the Claimant contributed to their injuries by not wearing a seatbelt; and
5. include the Defendant’s version of events where the Compensator has admitted liability, but has provided a different account;

Requirements c. to e. need to be provided so the medical expert can comment on the impact on diagnosis and prognosis, including whether the accident caused injury, if the Claimant’s or Defendant’s account is found to be true.

The Claimant must check the factual accuracy of any report before it is sent to the Compensator. Once it is sent, there will be no further opportunity for the Claimant to challenge the factual accuracy of the medical report. If the Claimant challenges the factual accuracy of the report and the medical expert refuses to make any amendment, the Claimant may send the report and any details of the challenge and response to the Compensator and may continue to argue that the report is incomplete or inaccurate.

Claimants must obtain a medical report before any settlement offer can be made or accepted, in respect of the claim for whiplash.

6. Disputing causation and allegations of fraud or fundamental dishonesty

There are several reasons why the claim may fall out of the Portal, including where the Compensator: (i) makes an allegation of fraud or fundamental dishonesty against the Claimant; or (ii) disputes or continues to dispute that the accident caused the Claimant any injury following disclosure of the medical report.

The Compensator has 20 days from receiving the fixed cost medical report, any other medical reports the Claimant relies upon, the list of losses and documents in support of any claim for other Protocol damages and claim for fees to notify that they wish to dispute that the accident caused any injury. They must also give reasons for doing so. At this point, unless the Compensator makes a final settlement offer for the other Protocol damages and the Claimant accepts that offer in full and final settlement of all claims for damages for injury and other Protocol damages, the claim will be dealt with outside the Protocol.

7. New awards for whiplash injuries

As seen from the table below, the new tariffs are much lower than the current awards for whiplash injuries within the Judicial College Guidelines.

A court may apply an uplift of no more than 20% in exceptional circumstances, to either tariff category. The court must be satisfied the degree of pain, suffering or loss of amenity caused by the whiplash injury/injuries makes it appropriate to use the greater amount and either (i) the whiplash injury/injuries are exceptionally severe; or (ii) where the person’s exceptional circumstances increase the pain, suffering or loss of amenity caused by the injury/injuries.

8. Section 152 Notices

When the Claimant confirms their intention to start court proceedings, the Portal will automatically generate a notice to the Compensator that the Claimant intends to start proceedings for the purposes of section 152 Road Traffic Act 1988.

If an RTA Insurer consented in the Compensator’s Response to being joined as a Defendant, the Claimant must include the RTA Insurer as the second Defendant to the claim.

9. Court Pack

Before starting court proceedings, the Claimant must generate a Court Pack from the documents on the Portal. The Claimant must send the Court Pack list to the Compensator at least 5 working days before starting court proceedings. The Compensator has 5 working days to review the contents – they can add documents, but they cannot remove any documents. If the Compensator amends the list, they must send a corrected Court Pack list to the Claimant. The Claimant must then use the corrected Court Pack list to start court proceedings. The Portal-generated court form and the Court Pack must be sent to the court to start proceedings. If the Defendant fails to file an acknowledgement of service, the Defendant is not permitted to rely on any of the evidence provided by the Defendant in the Court Pack. Depending on the type of case, e.g. liability dispute only, or where an uplift is claimed, there are different documents that should be included in the Court Pack, so it is worth double checking before submitting (see Appendix C of the Protocol).

It is important all evidence that parties wish to rely upon is uploaded to the Portal and included in the Court Pack. The court may decide not to allow new evidence to be considered if it is produced after proceedings are started: the parties will need to prove the new evidence is necessary to determine the claim.

10. Costs

Any claim started under Practice Direction 27B will be treated as allocated to the small claims track, and therefore small claims track costs apply. The Claimant will be able to recover the fees for a fixed cost medical report or medical records. The Defendant has to pay for a further medical report, in addition to the first fixed cost medical report, if the Claimant requests and justifies it. The court may also order that the Defendant pay the cost of any police accident report incurred by the Claimant. Cases which exit the Portal and proceedings are started will normally then fall into the fixed recoverable costs as set out at Section IIIA of CPR 45.

Emma Woods
March 2021