Will the Governments ‘Whiplash Reform Programme’ implemented on the 31st of March 2021 work to prevent access to Justice?
Why did we need this reform?
The Government of the day has found through consultations with industry experts on whiplash claims, due to the sheer quantity of whiplash claims, car insurance premiums are exorbitant. It was hoped the introduce reform could lower the cost of insurance premiums by approximately £45 per annum for road users.
In the Civil Court, the overriding objective maintains that all parties be on an equal footing, can participate fully in proceeding and witnesses can give their best evidence; as such, every reform that is introduced should work to further this objective.
How has the reform affected Road Traffic Claims?
Prior to the implementation of new regulations on the 31st of March 2021, rule 26.6 of the CPR provided that Road Traffic Claims (‘RTCs’) will be allocated to the small claims track if the personal injury did not exceed the value of £1,000. The new regulations increased said limit to encompass claims for personal injury of up to £5,000 and an additional £5,000 of protocol damages (credit hire fees excluded). However, those who suffer injury and are ‘protected parties’ have their cases automatically assigned to the fast track.
Before the new reforms were implemented the total fee awarded to a complainant was a highly contentious matter to discern, however, the latest reforms have implemented a tariff system which details that one would be able to claim a maximum of £260 for injuries lasting no more than three months, and £4,345 for injuries lasting up to twenty-four months. Some have criticised this reform for setting the tariffs at too low a level, this system will only apply to RTC claims resulting in minor psychological injuries. Further, whiplash claims must now be substantiated with medical evidence.
As consequence of these changes, many more RTA claims would find themselves on the small claims track where legal costs are non-recoverable; this of course naturally raises a barrier to justice to those from certain socio-economic backgrounds as their inability to pay for legal representation will invariably affect the likelihood of a claimant’s success. To combat this the government have introduced Pre-Action Protocol (PAP) for RTA claims and the Official Injury Claim service which has been introduced to process claims out of court. Although, legal costs are again, non-recoverable through the Official Injury Claim service.
What affect does this have on a claimant’s access to justice?
Rule 1.7 of the Pre-Action Protocol for Personal Injury Claims states – “If a party to the claim does not have a legal representative they should still, in so far as reasonably possible, fully comply with this Protocol”. Any reference to a claimant in this Protocol will also mean the claimant’s legal representative. This in itself raises issues of concern as the new online system is one that has recently come into existence and is understood currently only by industry experts who have been anticipating such a change; conversely, the public have heard little to nothing on the coming reform due to a lack of advertisement about the new provisions from the government of the day. This is partially due to the pandemic we find ourselves within. This in turn, leaves ordinary claimants faced with a system they have no knowledge of, bound by rules they are not privy to such as the instructing party having to bear the cost of an expert witness. In my opinion, this will only lead to self-represented claimants attempting to bypass this process to represent themselves on the small claims track where they feel they will be aided through the process by the court system. Or alternatively, mean one must undertake legal services to process their claim through the online system. Whilst this would unquestionably alleviate some stress on the court, it would in turn restrict access to justice to those who can afford it, as legal fees are not recoverable on either the small claims track or via the Official Injury Claim service. Thus, in most RTCs, the cost of legal representation will outweigh the prospective damages leaving claimants with only justice through admission and no real reparations as consequence of the damages they faced.
In conclusion, this reform will likely succeed in reducing road insurance premiums by drastically reducing the amount of RTCs claims pursued, those that are successful and the overall cost of damages arising from RTCs. However, it is vital we appreciate that this has been done to the detriment of the victim, providing them with more legal hurdles and jargon that they are not equipped to face in their pursuit of justice.
Jack Nicholas Ferdinando