Government response to Part 2 of whiplash consultation – “Disproportionate” Whiplash Plans Dropped

On 22^nd March 2022, with the Government publishing its response to the second part of the 2016 consultation on reforming the soft tissue injury claims process, Claimant lawyers have welcomed the news that it does not intend to proceed with further reforms to whiplash claims.

In November 2016, the Government published a consultation on Reforming the Soft Tissue Claims Process which ended in January 2017.

Part 1 of the Consultation addressed the implementation of the whiplash tariff, increasing the small claims track for personal injury claims and the banning of pre-medical offers for whiplash claims.

Part 2 of the Consultation considered issues such as credit hire, rehabilitation and disbursements.

Two key issues considered as Part 2 of the Consultation were:

-Implementing the recommendations of the Insurance Fraud Taskforce

-Call for evidence on issues relating to soft tissue injury claims

Insurance Fraud Taskforce

The IFT recommended that the Government should consult on whether parties should be compelled to include referral sources within the Claims Notification Form and whether claimants should be required to seek permission to discontinue less than 28 days before trial.

Due to a lack of agreement from respondents the Government declined to propose any specific changes but indicated that it will continue to monitor behaviours on these two issues.

Call for Evidence

Evidence was gathered on five issues:

-Credit hire services

-Early notification of claims

-Provision of rehabilitation

-Recovery of disbursements

-Introduction of a Barème (fixed tables of damages) system

In response to credit hire, the majority of respondents favoured the option where the system would be managed  by reference to industry codes such as the General Terms of Agreement.  However, due to a lack of agreement on a single model, the Government indicated that it will monitor and improve industry agreements initially, with an option of making those agreements mandatory.

In relation to a proposed system of early notification – such as seeking medical treatment within 72 hours, unsurprisingly this saw greater support from insurance linked representatives.  However, it was argued by some respondents that this would place an undue burden on both claimants and the NHS and as a result this option was not pursued but will be kept under review.

On the proposal to tackle rehabilitation, the extension of Medco was the favoured option, followed by proposals for defendants to pay all rehabilitation costs.  In response the Government stated that the extension of Medco in the long term would be considered, but the immediate future would be guided by discussions within the industry on improving the rehabilitation process.

There was very little support when it came to the restriction on the recoverability of disbursements and it was acknowledged that the Part 1 measures “will already significantly limit the ability of a claimant to recover their legal costs”.  As a result the Government has no plans to review this proposal further.

Under half the respondents supported an introduction of a Barème system for claims brought in the UK, arguing that it would lead to under compensation.  Whilst the Government recognised that there were good arguments for such a scheme, as the whiplash tariff system was at such an early stage, this proposal would be kept under review.

In summary, we can see that the Government’s response is limited with such issues as credit hire and rehabilitation being monitored following continued discussions with key stakeholders on such issues.

No specific actions were identified with regards to the Insurance Fraud Taskforce, early calls for evidence and the recoverability of disbursements, although again the Government has indicated that these issues will be kept under review.

Neil McKinley, president of the Association of Personal Injury Lawyers commented that “Several proposals in this section of the consultation were in reaction to behaviours which are perceived to be indicative of fraud. They were disproportionate and unfair to claimants, the vast majority of whom are genuinely injured people,” 

The suggestion that recoverability of disbursements should be restricted was particularly heavy-handed, and would only serve to put undue financial drains on people who are representing themselves in the new system,” Neil added.

“It is only sensible that these measures have been dropped.”

It is perhaps not surprising given the infancy and lack of data available on the whiplash reforms that no concrete steps have been taken by the Government but it is likely that we may see such issues being considered in more detail once future data is available.

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For more information please contact us by emailing info@boxlegal.co.uk or calling 0870 766 9997