Kerry Underwood

PERSONAL INJURY REFORMS ANNOUNCED!

with 13 comments


I am trekking in the Sahara Desert to raise money for the Lord’s Taverners’ cricket charity for disabled and disadvantaged children. If you find my blogs helpful how about making a donation? All donations go straight to the charity as the trekkers pay all of their own expenses. Please donate here.

 

These reforms will all come in on 1 October 2018.

This is all dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs which will be out in March. This is 3 volumes and over 1,400 pages. You can pre-order your copy at a discounted price of £68 including P&P (normal price £80 including P&P) by 6 March. Details here.

Contact me on 01442 430 900 or email me here.

This is also all dealt with in my Personal Injury Reforms course this May, which can be booked here – early bird discount if  paid for by 6 March.

Next month I will be trekking 160 kilometres through the Sahara Desert to raise money for the Lord’s Taverners charity and EY Foundation. If you would like to show your support and make a donation please click here. If you buy the Personal Injury Reforms book by 6 March, £5.00 will go to these charities.

Today the Government announced the result of its consultation into personal injury reforms which can be accessed here.

The personal injury small claims limit will rise from £1,000.00 to £5,000.00 in relation to all road traffic accident matters.

For all non-RTA personal injury matters the small claims limit will rise from £1,000.00 to £2,000.00

The personal injury small claims limit last went up in 1991 and this new limit represents a slightly below inflation increase.

This move is likely to end further debate about the small claims limit for a generation.

Whiplash tariff

The Government has now announced the tariff for soft tissue injuries and has decided on a unified figure that will cover both whiplash claims and minor psychological claims, and therefore there will be no separate figure for minor psychological injuries. This was only going to be £25.00 in the original consultation anyway.

The figures are:

Injury Duration 2015 average payment for PSLA – uplifted to take account of JCG uplift (industry data) Judicial College Guideline (JCG) amounts (13th edition) Published September 2015 New tariff amounts
0–3 months £1,750 A few hundred pounds to £2,050 £225
4–6 months £2,150 £2,050 to £3,630 £450
7–9 months £2,600 £2,050 to £3,630 £765
10–12 months £3,100 £2,050 to £3,630 £1,190
13–15 months £3,500 £3,630 to £6,600 £1,820
16–18 months £3,950 £3,630 to £6,600 £2,660
19–24 months £4,500 £3,630 to £6,600 £3,725

The Prisons and Courts Bill

The introduction of the tariff system, and the banning of pre-medical offers are dealt with in the Prisons and Courts Bill published and made before Parliament today.

However the detail will be in regulations to be made under the Act.

The bill is here.

The relevant part is part 5 – entitled Whiplash and containing clauses 61 to 67.

Points to note are that “whiplash injury” is defined as an injury, or set of injuries, of the neck or the neck and upper torso that is of a description specified in regulations made by the Lord Chancellor. (Clause 61(1)).

The provisions only apply to people injured while using or being carried in or on a motor vehicle other than a motorcycle. (Clause 61(3)).

Thus pedestrians and motorcyclists are not covered by these provisions and are not subject to the tariff system.

If the Act causing the injury is also a breach of one of the statutory provisions in section 53 of the Health and Safety at Work etc Act 1974, then it is excluded from the definition of a whiplash injury.

This mirrors the provisions of the portals.

Clause 63 allows for an uplift in damages in exceptional circumstances, and all of that is to be dealt with by regulations made by the Lord Chancellor.

Clause 64 contains detailed provisions on the prohibition of settlement before a medical report and makes it a breach of the Act, but not a criminal offence and does not give rise to a right of action for breach of statutory duty.

Any action against a regulated person is to be taken by the appropriate regulator, that is professional disciplinary action.

Clause 65(6) specifically provides that a breach of the rule against settling without a medical report does not make the agreement to settle void or unenforceable.

Pre-medical offers

Offers to settle whiplash claims before medical evidence has been obtained will be banned.
That ban and the whiplash compensation tariffs require an Act of Parliament and will be in the Prisons and Courts Bill.

The small claims limit increase can be dealt with by way of statutory instrument but the Government has announced that it will come in on 1 October 2018, along with all of the other changes.

Initial thoughts

For those lawyers not dealing with road traffic matters this announcement pretty much represents no change.

In the past there has always been damages inflation when the small claims limit goes up, that is that the courts work hard to get marginal claims above the new limit. I have always flagged that up and the decision to increase the small claims limit from £1,000.00 to £2,000.00 is  bad news for non-RTA insurers as it will lead to a significant increase in general damages in that band and it is not difficult for a judge to push a claim up from say £1,500.00 to £2,000.00.

Had the increase been from £1,000.00 to £5,000.00, then that would have been impossible.

A huge number of claims are clustered around the current small claims minimum level and are often settled for just above that level, for obvious reasons.
Thus, outside the field of road traffic work, damages will rise and lawyers will get the benefit of that in higher fixed costs and in a higher fee if they are charging the client 25% of damages, as is standard.
For non-road traffic lawyers the key issue now is Lord Justice Jackson’s review of Fixed Recoverable Costs and in particular the new upper level on damages covered by Fixed Recoverable Costs, whatever that will be.

It is now almost certain that the extension of Fixed Recoverable Costs will also come in on 1 October 2018

For lawyers dealing with primarily road traffic matters this is a major blow, and is more significant than if the personal injury small claims limit had gone up to £5,000.00 across the board but with no restriction on whiplash claims.

The effect of the tariff system, set out above, means that the general damages figure in soft tissue claims will never cross the £5,000.00 general damages threshold unless the injuries are very serious.

That being the case the overall claim needs to be above £10,000.00 – the general small claims limit – to escape the small claims limit and to be cost bearing.

For all intents and purposes all road traffic whiplash claims will be small claims.

Overall, as a percentage of the personal injury market, road traffic whiplash claims are thought to account for around 50%.

Losers

The biggest losers, apart obviously from the clients who will no longer get proper compensation for soft tissue injuries, are firms heavily dependent upon road traffic work and in particular on referred work.

Medical reports and agencies will lose out very heavily indeed as they can expect 50% of their work to go.

Winners

Firms doing a general mix of civil litigation, including personal injury but not specialising in such work and not taking referred work, will benefit significantly.

It is the soft tissue injury work that tends to be headed off the pass to reach the factory firms one way or another.

Those firms will, in many instances, cease trading and the traditional mixed practice firms will then benefit from picking up the general personal injury work that is freed up.

Like it or not, this is a very clever move by the Government. No one can seriously argue about increasing the small claims limit for personal injury work generally from £1,000.00 to £2,000.00 as that does not even keep the increase in line with inflation since 1991.

However the effect of the changes will still be to remove around half of all cases from being cost bearing.

That of itself would not, in my view, cause a significant problem as if there was still a reasonable amount of damages, but with a quicker and cheaper procedure, lawyers doing whiplash work could still make a decent living by charging the clients say 40%.

The real killer for personal injury lawyers is the tariff system in whiplash injuries.

In many instances soft tissue injuries will have a value below the existing personal injury small claims limit of £1,000.00.

In practice

The practical advice on funding is now to move to a 40% pre-issue Contingency Fee Agreement on every type of personal injury case without exception.

This is necessary to help compensate for the fact that in any road traffic accident claim under £5,000.00 there will be only small claims track recoverable costs.

It also reflects the fact that fixed recoverable costs will be brought in for much higher value claims and lawyers will need to make up the shortfall by charging their clients more.

As set out above it is very likely that the extension of Fixed Recoverable Costs will come in at the same time as all of these reforms, that is 1 October 2018.

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Written by kerryunderwood

February 23, 2017 at 9:30 am

Posted in Uncategorized

13 Responses

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  1. Reblogged this on | truthaholics and commented:
    “The real killer for personal injury lawyers is the tariff system in whiplash injuries. As stated above the actual figures have not yet been announced, but if they are anything like those in the consultation document, that is a base of £400.00 for a soft tissue injury, increasing to just £425.00 where there is psychological injury, then the work will simply not be worth doing.”

    truthaholics

    February 23, 2017 at 9:48 am

  2. What if whiplash injury and another soft tissue injury say to lower back ?

    Douglas Green

    February 23, 2017 at 10:42 am

  3. I think the answer maybe that the £5,000 is to cover all RTA claims .

    Douglas Green

    February 23, 2017 at 10:51 am

    • All RTA related matters will have a Small Claims Limit of £5,000 with all other personal injury cases having a Small Claims Limit of £2,000. However the new whiplash tariff will not apply to all victims of road traffic accidents, but rather only those on or in a motorised vehicle. Also, motorcyclists are exempted, so those to whom the whiplash tariff do not apply include pedestrians, cyclists and motorcyclists, but they are all caught by the higher Small Claims Limit if £5,000.

      Kerry

      kerryunderwood

      February 23, 2017 at 10:53 am

      • I hope you are right, but the Gov response specifically says that “The Government intends to raise the small claims track from £1,000 to £5,000 for RTA related personal injury claims “. NO restriction to soft tissue ….seems clear??

        Brian Coghlan

        February 23, 2017 at 1:30 pm

      • Brian

        Original press release did not tell the whole story. £5,000 limit definitely for ALL RTA, not just whiplash, and definitely coming in on 1 October 2018, along with online courts and, I suspect, extension of fixed recoverable costs.

        Kerry

        kerryunderwood

        February 23, 2017 at 1:34 pm

  4. Government Response to the Consultation is here with more detail:

    https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/

    Implementation Date – 1 October 2018

    The Government has announced the tariff that will cover both whiplash claims and minor psychological claims.

    The figures in the tariff have been updated taking into account the uplift provided for in the most recent version of the Judicial College Guidelines. It was suggested in the consultation document that the lowest bracket should be 0–6 months, but this has now been broken down further into two bands, namely 0–3 months and 4–6 months. The Government has decided that the levels of compensation available under the new tariff will be as follows:

    0–3 months £225
    4–6 months £450
    7–9 months £765
    10–12 months £1,190
    13–15 months £1,820
    16–18 months £2,660
    19–24 months £3,725

    Ian Bevan

    February 23, 2017 at 11:17 am

  5. It does seem that injuries to the lower back would not be whiplash and therefore have the lower SCT limit although I appreciate the Lord Chancellor might close this off. For the Courts sake I hope so or ‘hiplash’ will become the new whiplash.

    1. In this Part “whiplash injury” means an injury, or set of injuries, of the neck or
    the neck and upper torso that is of a description specified in regulations made
    by the Lord Chancellor.

    dominicmoss

    February 24, 2017 at 1:31 pm

    • Dominic

      I agree- clearly scope for argument about what is “upper torso”. Does it send on how fat you are?

      Kerry

      kerryunderwood

      March 11, 2017 at 12:07 pm

  6. […] Commenting on these figures, Kerry Underwood writes: […]


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