Small Claims and Whiplash Reforms Published

Two statutory instruments and the latest update to the CPR Practice Directions confirm that the small claims and whiplash reforms are proceeding in earnest, with measures expected to come into force on 31^st May 2021. This will not be a detailed consideration of the new rules, or the new practice direction/protocol, but provides a summary of the key features.

The Civil Procedure (Amendment No. 2) Rules 2021 and the 129^th Update – Practice Direction Amendments

These amendments introduce changes to the CPR to the small claims track in RTA claims, and to complement the whiplash reforms; in particular introducing Practice Direction 27B ‘Claims under the pre-action protocol for personal injury claims below the small claims limit in road traffic accidents – court procedure’ (“RTA Small Claims Protocol”). These changes to the CPR will take effect from 31^st May 2021.

• The small claims track limit for personal injuries arising from an RTA has been increased from £1,000 to £5,000, with a few exceptions. The limit will still be £1,000 where:
  • The claimant is a child/protected party (except for whiplash injuries, where the fast track is used)
  • The claimant was, when the accident occurred:
    • using a motor cycle;
    • a pillion passenger…;
    • using a wheelchair… ;
    • using a bicycle…;
    • riding a horse; or
    • a pedestrian.
  • The claimant is an undischarged bankrupt on the date proceedings are started
  • The claimant or defendant acts as a personal representative of a deceased person
  • The defendant’s vehicle was registered outside the UK on the date of the accident
  • The claim is not related to an RTA

• Where the RTA Small Claims Protocol applies and proceedings are started under it  the claim will automatically be allocated to the small claims track unless the overall value is more than £10,000, PI is more than £5,000, or one of the above exceptions apply.

• There is no specific provision in the RTA Small Claims Protocol for pleadings (Particulars or Defence). Defendants are required to file an acknowledgment of service (using a new form) not more than 14 days after service of the (Protocol) claim form. Failure to do so will result in the defendant not having permission to rely on their evidence in the court pack or to partake in the hearing, absent relief.

• The RTA Small Claims Protocol contains a number of categories of case (e.g. liability admitted in full; liability not admitted etc.) with similar but distinct provisions governing their conduct.

• Permission will normally be given for only one expert medical report in respect of any whiplash injury and any report(s) should generally be fixed cost. The key exception is where the claimant obtains a report from a suitably qualified expert, in respect of a more serious injury suffered on the same occasion which also deals with the whiplash injury.

• Claimants who do not properly comply with the RTA Small Claims Protocol, in particular by unreasonably overvaluing their claim, resulting in fast (or multi) track proceedings may receive no more than fixed costs under that Protocol. Defendants faced with such claims under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the RTA Protocol’) can increase their prospects of such a finding by using a notification procedure in the RTA Protocol, where they indicate to the claimant that small claims would be the normal track.

• Claims which begin under the RTA Small Claims Protocol but subsequently leave and which also do not continue under the RTA Protocol, will be subject to the costs rules for claims leaving the RTA Protocol (Part 45, Section IIIA)

The Civil Liability Act 2018 (Commencement No. 1 and Transitional Provision) Regulations 2021

Summary

From 31^st May 2021 there will be tariffs on the amounts of PSLA payable in whiplash claims, and solicitors and barristers will be under a duty not to settle such claims without ‘appropriate’ evidence, of a form still to be determined.

From 25^th Feb 2021 ‘for the purpose only of exercising any power to make regulations’ sections 3, 5, 6, 8 and 9 of the 2018 Act come into force, namely:-

3. Setting the PSLA ‘tariffs’

5. Determining the scope and percentage of any uplift option (where the court thinks appropriate)

6. Determining what is ‘appropriate evidence’, which ‘regulated persons’ (including barristers and solicitors) will have to be satisfied of before settling a whiplash claim; including (optionally):

8. Enabling FCA regulation

9. Determining the full scope of regulators/regulated persons under s6

This essentially provides a 3-month window in which to make such regulations as are necessary for setting the scope of the measures which will come into force on 31^st May 2021.

From 31^st May 2021 sections 1-9 of the 2018 Act come into force, namely:

1. Definition of whiplash injury
2. Power to amend s1
3. PSLA tariffs
4. Requirement to review s3
5. Uplift (exceptional circumstances)
6. Requirement for sufficient evidence of whiplash injury
7. Requirement of regulators to monitor and enforce compliance with s6
8. Regulation by the FCA
9. Interpretation

These reforms will apply only to causes of action accruing on or after 31^st May 2021.

The [DRAFT] Whiplash Injury Regulations 2021

Draft Regulations pursuant to the above Regulations have been published. The tariffs are set out as follows:

Duration of injury	For whiplash without (minor) psychological injury	For whiplash with (minor) psychological injury
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

In addition:

• The maximum uplift for exceptional circumstances is 20%.

‘Appropriate evidence’ of a whiplash injury is, in line with the CPR changes, evidence from a suitably qualified (i.e. MedCo, or GMC Specialist Register where a more serious injury included) medical expert.

Samuel Irving is a Pupil at Farrar’s Building.

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