Practical consideration of whiplash reforms process

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26 April, 2021

We have previously reported on the long awaited MOJ reforms for whiplash claims arising from road traffic accidents. The Government initially announced the reforms back in 2015 and they are now, at long last, to come into force on 31 May 2021.

The Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents AKA the 'whiplash reforms' or 'RTA small claims protocol', increases the small claims track from £1,000 to £5,000 for claims arising out of a RTA.

Claims for personal injury worth less than £5,000 (or with an overall value of £10,000 including non-protocol vehicle costs such as credit hire, credit storage and subrogated losses) that occur after 31 May 2021 will now proceed within an on-line claims' portal.

This portal is being delivered by the Motor Insurers Bureau and is designed to be accessed by both litigants in person and legal advisors. There remain exceptions and the protocol will not apply to; children, protected parties, vulnerable road users, where injuries arise other than by way of a collision i.e. a pothole, amongst others.

The MIB are in the process of preparing a user guide although this is not yet ready. There is however a service walkthrough video of the Office Injury Claim Service available to view online (Service walkthrough video (officialinjuryclaim.org.uk)) which provides an overview of a Claimant's journey from submitting a claim, selecting a medical report provider, reviewing the report and negotiating settlement.

The Claimant will upload documents relating to liability and the compensator will have 30 days to respond. They can admit liability in full, admit liability in part, deny liability or admit liability but dispute causation. A failure to respond will mean liability is automatically admitted. If liability is denied the Claimant can commence proceedings. Should liability be determined in the Claimant's favour the claim returns to the portal for quantum to be decided.

The Claimant will arrange a medical examination through the portal and upon receipt of the medical evidence the compensator will have 20 days to make an offer. Both parties can make a maximum of three offers before the Claimant can commence proceedings. Once settlement is agreed the compensator must make payment within 10 days.

Perhaps one of the most significant changes of the reforms for a Claimant is the new tariff for general damages. One or more whiplash injury that resolve within three months will attract an award of up to £240. An injury resolving within 18 to 24 months will attract an award of up to £4,215. A small, fixed amount may be added for "minor" psychological injury suffered at the same time as the whiplash and there may be a 20% uplift on damages if it is considered there are 'exceptional circumstances'.

The Ministry of Justice is reluctant to provide any guidance on what constitutes "exceptional circumstances" and it will ultimately be for the courts to decide.

If commencing proceedings, the Claimant must send the court pack to the compensator at least 5 days beforehand. The compensator can add documents to the pack, but they cannot remove any.

If the compensator fails to file an Acknowledgment of Service in time, they will not be permitted to rely on any of their documents. They can attend a hearing but will not be heard unless they make an application and receive the permission of the court to be heard.

All actions commenced under the RTA small claims protocol will be deemed to be allocated to the small claims track and such costs will apply.

The service was due to be made available to all registered parties in the training environment in early April but to date remains outstanding. A separate demonstration is being developed for Claimant representatives and will be published via an E-shot and shared with respective professional associations.

For more information contact Warren Smethurst at Warren Smethurst or on 01619180007 or Louise Barker at Louise Barker or on 01133862684 or Joe Winstanley at Joe.Winstanley@forbessolicitors.co.uk or on 07976 279279. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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