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Whiplash reforms — Part 2: no more changes

The Government feels its work in this area is largely done. The reforms we have today are all that we are likely to see.

The Government this week released ‘Part 2’ of its response to the Consultation it put out in November 2016 on reforming the soft tissue injury (whiplash) claims process in England and Wales.

Due to the size of the Consultation and the need to prioritise issues, it was decided that the Consultation would be responded to in two parts. Part 1 was the starting gun for the series of policy and legislative actions which lead directly to ‘the whiplash reforms’ that went live on 31 May 2021.

Part 2 was to follow ‘in due course’. That time is now.

The areas of the Consultation which became Part 2 are whether:

  • the CNF should be amended to include details of a referral source (i.e. recommendation 17 of the final report from the Insurance Fraud Taskforce (IFT) published in January 2016)
  • claimants with Qualified One-way Costs Shifting (QOCS) protection should require court permission to discontinue within 28 days of a trial (that was a recommendation made by the IFT’s PI sub-group)

A call for evidence on:

  • options for tackling credit hire issues
  • options relating to the need for early notification of claims
  • how the provision of rehabilitation treatment might be improved
  • whether there should be restrictions on the recoverability of disbursements
  • the possible introduction of a European style Barème system for PI claims
  • other suggestions on how Government reform could help control costs of civil litigation

The Government’s response this week is that no further action is to be taken in any of those areas. Its logic is:

Issue Response
Referral Source No action needed. CMCs are more tightly regulated than was the case when the Consultation went out AND Claims Portal Co introduced a new CNF mandatory field to this effect within the RTA Portal process.
QOCS No cross-industry consensus on the need for this change could be reached so the Government will continue to monitor.
Credit Hire The Government noted reinforcement and revision of the GTA so felt it best to support that approach. Changes to the law in this area will also entail primary legislation, so are not straightforward.
Early Notification This held no attraction for the Government.
Rehabilitation No action is to be taken because:
(a) the Government is working with stakeholders to come up with a new Rehabilitation Code
(b) the effect of the whiplash reforms are as yet unclear
(c) longer term, the Government will look at the feasibility of expanding MedCo to include the provision of rehabilitation services.
Disbursements Disbursements This option received little support. The whiplash reforms adopted suffice.
Barème System The Government liked this option but it was felt that the whiplash reforms suffice for now.
Control Costs Control Costs The Government noted many smart suggestions but stated that, several years on from the Consultation, many controls have been taken forward (such as the extension of fixed recoverable costs and the ban on ‘cold calling’).

This response draws a line under the discussion as to what reforms are needed in the soft tissue injury and related claims space. Organic reform will continue via the usual channels and as part of reform packages focussed on other areas and which incidentally impact on this area but, in the main, the Government feels its work in this area is largely done. The reforms we have today are all that we are likely to see.

Weightmans has been heavily involved in the discussions leading to, and in implementation of, the whiplash reforms and has a specialist team focusing on the problems arising, including tariff/non-tariff injury compensation calculation, early ‘gaming’ of the OIC process or claimant attempts to avoid the limitations on costs recovery.

The Whiplash Reforms

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