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What lies ahead in 2020?

As a New Year and decade begins, we have a brief look at what developments defendants and insurers are likely to see in 2020 and beyond.

Extension to Fixed Recoverable costs

Early in 2019, the Ministry of Justice launched a Consultation on extending Fixed Recoverable Costs in civil cases in England and Wales. The Consultation sought views on the implementation of the recommendations made by Sir Rupert Jackson in his Report on Fixed Recoverable Costs published in July 2017. Sir Rupert Jackson proposed extending the fixed costs regime as a means of ensuring proportionate costs, he remarked "…Controlling litigation costs is a vital part of promoting access to justice. If the costs are too high, people cannot afford lawyers. If the costs are too low, there will not be any lawyers doing the work."

The Consultation invited views on the following issues:

• The extension of FRC to all other cases valued up to £25,000 in damages in the fast track.
• A new process and FRC for noise induced hearing loss claims.
• The expansion of the fast track to include the simple "intermediate" cases where damages are valued between £25,000-£100,000.

The Consultation also proposed amending the Part 36 regime to encourage early settlement of claims.

The Consultation closed on 6th June 2019 and the government at the time confirmed that it would commence discussions with the Civil Procedure Rule Committee at an early stage to discuss potential rule changes necessary to implement the proposals.

It is expected that the government will formally respond to the Consultation in 2020, and it seems inevitable that the majority of Sir Jackson's proposals are likely to be implemented possibly in April 2021 or October 2021.

Increase in Small Claims Track

The small claims limit is scheduled to be increased from £1,000 to £5,000 in road traffic accident cases, and to £2,000 for all other personal injury claims in April 2020. However, it has been widely reported that the Civil Procedure Rule Committee has yet to discuss proposals for the new rules and protocol after talks were held up by the General Election. The April 2020 implementation date may therefore have to be postponed again - watch this space!

The Civil Liability Act 2018 - Whiplash Reforms

The whiplash reforms included in the Civil Liability Act 2018 are also scheduled to come into force in April 2020. The whiplash measures in the Act:

• provide for a tariff of compensation for pain, suffering and loss of amenity for whiplash claims;
• enable the court, subject to regulations, to increase the compensation awarded under the tariff; and
• introduce a ban on seeking or offering to settle, whiplash claims without appropriate medical evidence.

A new claims portal designed for use by litigants in person called "Official Injury Claim" has just been unveiled by the MIB. According to the MIB, the aim is to implement the new service on 6 April 2020, which means all accidents on or after this date where there is a claim for personal injury valued at under £5,000 will start in this new service.

The provisions are likely to have a significant impact on the whiplash claims system, but many remain sceptical as to whether the April 2020 deadline can be met.

Part 2 of the consultation paper Reforming the Soft Tissue Injury (whiplash) Claims Process

The Government is considering the issues raised in Part 2 of the consultation paper Reforming the Soft Tissue Injury (whiplash) Claims Process and despite confirming the consultation would be published by the end of 2019 now states that it intends to publish its response 'in due course'.

Damages-based agreements (DBAs)

The outcome of an independent review of the drafting of the Damages-Based Agreement Regulations 2013 was presented in October 2019 and feedback from practitioners on the proposals was requested by 15 November 2019. The feedback was presented to the MOJ at the end of 2019 with a view to re-drafting the 2013 DBA Regulations in the new year.

The Courts and Tribunals (Online Procedure) Bill

The Bill designed to provide for online procedures in civil and family courts in England and Wales once again failed to complete its passage through Parliament before the end of the Parliamentary session. This means the Bill will make no further progress, however a similar bill is likely to be introduced into the new session this year.

Brexit

Of course, no review of the year would be complete without mentioning Brexit, which we anticipate will continue to dominate the government's agenda. Britain moved a step closer to leaving the EU when Parliament voted in favour of the EU (Withdrawal Agreement) Bill. The government is aiming to leave on 31st January 2020. It is then expected that we will enter a post- Brexit implementation period until the end of 2020 during which time further negotiations will take place between the government and the EU.

It is still unclear what form Brexit is going to take and how it will impact the public sector and litigation generally.

Forbes comment

2020 looks set to be another busy and eventful year for insurers and defendants. However, with Brexit dominating the government's agenda, the proposed implementation of the whiplash reforms and the increase to the small claims track may have to be postponed unless the government can act quickly to introduce these reforms in April 2020.

We will continue to keep you fully up to date with all the latest news and developments on our website and through our Twitter page @ForbesInsurer

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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