Skip to main content

What does this mean for you? The Whiplash Reforms

The reforms, which will apply to accidents occurring on or after 31 May 2021 are:

  • The creation of a tariff of compensation for whiplash injuries with a prognosis of less than two years
  • An increase in the small claims track limit to £5,000 for most adults pursuing injury claims arising out of motor accidents
  • The creation of the new Online Injury Claim (OIC) Portal through which sub-£5,000 injury claims from adult vehicle occupants are to be processed with an accompanying Protocol and a new Practice Direction (27B) governing those OIC Portal claims that require court adjudication

In short, the reforms are designed to push a tranche of low value injury claims out of the fast track costs recovering procedural bracket and into the small claims track procedural bracket, where costs are not recoverable and then to assist those affected to pursue such claims without legal representation.

The rules of litigation in England and Wales are such that those claims which society considers to be ‘small claims’ are claims which society also considers should be capable of being pursued by people without the need for lawyers. Accordingly, solicitors’ costs are not recoverable in small claims. 

Currently that means that anyone with an injury claim worth less than £1,000 cannot recover solicitors’ costs. Any lawyer will tell you, however, that there are virtually no injury claims worth less than £1,000 as things stand. 

That changes with the reforms. However, pursuing litigation is complex and daunting for most. The Portal is the Government’s admission that people need help. 

What does this mean for claimant law firms?

Some claimant PI practices may decide to leave the market but damages-based agreements (DBAs) remain an option and the anticipated, hoped for, ease of processing OIC Portal claims may mean that many claimant law firms will wait to see impact on income before making a decision. It is also likely that claims management companies (CMCs) will invest in this area. They present a new challenge for insurers. Equally, genuine litigants in person could be difficult to deal with. 

Also, it will be more important than ever for claimant representatives to maximise quantum, in an attempt to increase the value of claims to the point where legal costs also become payable. 

Whilst obviously the reduction in damages and costs will be welcomed by the insurance market, these reforms are extensive and so there is a lot to adapt to. Processes will have to become more complex and flexible.

Looking at the changes in more detail

  • The small claims track limit increase

    With the reforms the limit will increase from £1,000 to £5,000 but not for everyone.

    The status quo is retained for those injured claimants:

    1. considered the most vulnerable users of English and Welsh roads (vulnerable road users)
    2. incapable of conducting litigation themselves (children, protected parties, the deceased or bankrupts) or
    3. pursuing defendants driving foreign registered vehicles.

    The only exception to that concept of the status quo being retained for the above listed claimants is that whiplash claims from children and protected parties of any value are deemed to be fast track and so costs are also payable. 

    The changes mean that living adult vehicle occupants with full capacity who are not bankrupt are the tranche of claimants  whose sub-£5,000 injury claims will no longer come with an entitlement to recover costs. The new tariff will serve to make almost all whiplash injuries worth less than £5,000, further swelling that group. 

    It is considered that such claimants should be capable of pursuing such claims themselves particularly as the reforms also create a new portal for such claims to be processed simply.  

  • The tariff

    The tariff for whiplash injuries has been set slightly higher than the draft tariff published some time ago and unexpectedly includes a table for whiplash only and whiplash plus minor psychological symptoms injuries as follows:

    Duration of injury Whiplash only Whiplash plus minor psychological symptoms
    Not more than 3 months £240 £260
    More than 3 months, but not more than 6 months £495 £520
    More than 6 months, but not more than 9 months £840 £895
    More than 9 months, but not more than 12 months £1,320 £1,390
    More than 12 months, but not more than 15 months £2,040 £2,125
    More than 15 months, but not more than 18 months £3,005 £3,100
    More than 18 months, but not more than 24 months £4,215 £4,345

    Interestingly, there is no column for other minor soft tissue injuries, which could have saved a lot of argument.

    Currently, a whiplash injury with a prognosis of 16 months will attract damages of about £5,000. A 24 month whiplash injury is currently worth about £7,410. So all whiplash injuries within that prognosis range of 16-24 months would be worth over £5,000, were it not for the introduction of the tariff.

    Once the tariff comes into force, all whiplash injuries with a prognosis of less than 2 years will be valued in accordance with the tariff and therefore below £5,000, so within the new small claims track bracket.

  • The OIC Portal

    How will it work?

    As with the RTA Portal, a Pre-Action Protocol sets the rules as to how a claim is presented to an insurer and details what happens whilst the claim is handled by the compensator and a Practice Direction governs the process surrounding the issue of proceedings and court process leading to adjudication.

    The process is specifically designed to allow a claimant, whether represented or not, to present their claim of less than £10,000 in total value with an injury element worth less than £5,000 to a compensator. Unlike the RTA Portal, the system picks the compensator – or MIB – based on the details entered by the claimant. The process will then deal with both liability and quantum, and will also ensure that any disputes as to recoverable disbursements are concluded.

    Vehicular loss compensation which the claimant does not keep but returns to others, such as subrogated insurer claims for PAV or repair, and hire (known as ‘Non-Protocol Vehicular Costs’), are excluded for the purposes of valuing a claim to determine whether it has an overall value below £10,000. A claimant who ignores that provision, values the claim at in excess of £10,000 – including the otherwise excluded Non-Protocol Vehicular Costs and so considers the claim ‘too high in value’for the OIC Portal - will be limited to small claims track costs if they issue proceedings.

    Liability

    Insurers get 30 days to investigate and respond to a claim with a decision on liability (MIB gets 40 days). Unlike the RTA Portal, evidence in support of any full or partial denial must be supported with a Statement of Truth. Indeed, Statements of Truth feature prominently throughout, with claimants and defendants, or even compensators on their behalf, if warranted, being required to use them.

    If insurers fail to respond to a claim within 30 days, they are deemed to admit liability. This is a change to the current RTA Portal process where a failure to respond on time takes the claim out of the process but liability remains in issue.

    Absent a full admission, there is a facility for negotiation and offers on liability.

    In the face of a compensator refusing to concede any liability and the claimant still maintaining the claim, the OIC Portal assists the claimant to issue proceedings. The claim then leaves the process for a liability adjudication at court via the small claims track. If some liability attaches to the compensator, the Portal is notified and the Portal process continues to deal with quantum.

    A partial concession of liability which is not accepted by the claimant, moves to the quantum stage as the compensator has conceded that the claimant will likely be recovering something and liability and quantum, if necessary, will be determined together.

    Liability admissions are only binding in relation to the individual claimant and their claim. They do not affect the liability position with other claimants.

    Fraud

    Unlike the RTA Protocol, this Protocol expressly provides for a claim to leave the process if the compensator alleges fraud or fundamental dishonesty at any point. That can either be as part of a formal response on liability under a Statement of Truth, or at any other point. It will then be dealt with in accordance with the Personal Injury Pre-Action Protocol and Practice Direction on Pre-Action Conduct.

    Quantum

    If some liability is conceded or attributed to the defendant at a liability determination hearing, medical evidence is obtained and negotiation begins.

    It is the claimant’s decision to use this Protocol process rather than the RTA Protocol, based on estimated value, but claims considered more suitable for the RTA Protocol due to value can be pushed across at any point by either party.

    Compensators must respond to the submission of a medical report with an offer within 20 days and are required to assist unrepresented claimants if more than the single system-generated medical report is required. With no costs sanction for non-compliance available, the system stretches to allow a compromise: offers - even previously rejected offers - can be accepted. Also, further evidence (including medical evidence) and comments can be uploaded at any time, even after the negotiation period has ended.

    Interim payments

    Unlike with the RTA Portal, interim payments can be made at any time after an admission but only in relation to the non-injury element of the claim. Compensators can make them without being asked - on a specific or general basis - and the system allows claimants to issue proceedings for the purpose of forcing an interim payment, if a request is rejected in the Portal. The claim returns to the Portal after the court has adjudicated on the interim payment request.

    Non-Protocol Vehicular Costs (NVC)

    Such losses do not form part of the losses considered for valuation purposes and are not pursued via the OIC Portal process. That said, as generally in litigation, if proceedings are issued, a claimant is required to pursue all elements of their claim at once. A claimant set to proceed to court for a determination of damages is therefore prompted to pull all NVC together and add them to the proceedings before issue.

    Insurers should liaise closely with their policyholders if they are aware that those policyholders are pursuing injury claims. If the policyholder’s claim starts in the OIC Portal, the insurer’s outlay will need to be pursued by the policyholder when they litigate.

    A compensator faced with such NVC losses having been added needs to respond by setting out their arguments in response and also attaching their evidence, again with a Statement of Truth. Failure to do so could mean the compensator being unable to challenge this element of the claim at court.

    Costs and conduct

    There is almost no reference to costs penalties as a consequence of conduct. Indeed, the only reference is as a penalty should a compensator unreasonably refuse to fund a further medical report. In such circumstances, the compensator can face unreasonable conduct costs under CPR27.14(2)(g). The Practice Direction also requires the compensator to pay the court fee if a claimant is forced to issue to obtain an interim payment.

    The OIC Portal Protocol expressly dis-applies the provision within the CPR which allows for ‘costs only proceedings’ to resolve disputes on costs. Instead, it provides an avenue for a claimant who cannot resolve their claim for disbursements to proceed to court for an adjudication on that point alone.

    Issuing proceedings

    A claimant can issue proceedings for several reasons, being:

    • liability determination, quantum assessment,
    • both liability and quantum,
    • to request or enforce an interim payment,
    • limitation,
    • disbursement liability,
    • determination of the amount of disbursement, or
    • to force payment of unpaid damages or disbursements

    The system presents the claimant with the correct Claim Form to use and helps the claimant collate relevant documents.

    Proceedings issued for reasons such as limitation or liability determination are stayed (if some liability attaches to the defendant) whilst the claim proceeds through the Portal in respect of quantification and are used again if a claimant needs to return to court for quantum or costs assessment.

Related Articles

Podcasts

We will be producing a series of 10 podcasts with which we will delve into the forthcoming whiplash reforms. 

 Let us know if we can help

Key contacts

Glyn Thompson
Glyn Thompson

Principal Associate

+44 (0)151 242 6901 Email Glyn
Liam McGuire
Liam McGuire

Partner

+44 (0)151 242 0889 Email Liam

Be prepared

Let our team of experts handle the initial legal challenges that may arise for you.

Contact us
Share on Twitter