Whiplash Injury Regulations 2021

Lord Wolfson of Tredegar Excerpts

Monday 26th April 2021 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

That the Grand Committee do consider the Whiplash Injury Regulations 2021.

Relevant document: 49th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I beg to move that the Grand Committee do consider the Whiplash Injury Regulations 2021 and the Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021.

These draft statutory instruments are key components of the Government’s whiplash reforms. They will simplify the process of settling whiplash claims, provide certainty to claimants as to how much their claim is worth, and benefit society by enabling an average reduction in insurance premiums for ordinary motorists of around £35 per premium. I remind the Grand Committee that the Secondary Legislation Scrutiny Committee has drawn both of these important SIs to the attention of the House.

The House had a number of extensive debates on the merits of the Government’s policy underpinning these SIs during the passage of the Civil Liability Act 2018—which I will refer to as “the Act”—so, with the limited time available to us today, my focus will be on the detail of these regulations rather than on rehearsing past policy debates.

The measures in Part 1 of the Act change the process for making whiplash claims by defining what constitutes a whiplash injury; introduce a fixed tariff of damages for pain, suffering and loss of amenity, or PSLA; provide for an uplift to be applied to the tariff amount in exceptional circumstances; and ban the practice of seeking or offering to settle a whiplash claim without first seeking appropriate medical evidence. In addition, we are increasing the small claims track limit in respect of road traffic accident-related personal injury claims from £1,000 to £5,000.

We had also previously committed to increasing the small claims limit for all other types of personal injury, including employers’ and public liability claims, to £2,000. However, the Lord Chancellor has confirmed today, through a Written Ministerial Statement, which I have repeated, that the Government have listened to the views of Members of this House and others, and have decided both to limit this increase to £1,500 and to defer its implementation until April 2022. I hope the Committee will agree that this is a sensible and pragmatic decision, which will give stakeholders additional time to prepare.

The Whiplash Injury Regulations set out a tariff for the amount of damages payable for PSLA for a whiplash injury or injuries of up to two years and any minor psychological injury suffered at the same time. They allow the court to apply an uplift of up to 20% to the tariff amount in exceptional circumstances. Regarding the ban on pre-medical report offers to settle, they specify what constitutes appropriate medical evidence and the experts who may provide it. That will differ depending on whether the injuries include a non-whiplash element.

The purpose of the other statutory instrument is to give powers to the Financial Conduct Authority to enable it to monitor and enforce the ban on pre-medical offers to settle.

Let me now provide a little more detail on each regulation, starting with the tariff figures, which present a rising scale of fixed payments determined by injury duration, with damages reduced less at the top end to recognise more serious injuries. Where the prognosis exceeds two years—in serious cases, that is—claims fall outside the tariff.

We have reviewed and updated the previously published figures to account for inflation. We have also added a three-year future-proofing element to ensure that they do not move out of alignment with future inflationary pressures before the required statutory review in three years’ time. That leads to an increase of about 11% over the figures previously provided to the House.

The reason for the uplift of up to 20% in exceptional circumstances is to balance the need for an effective tariff while also providing for judicial discretion. That 20% figure takes into account feedback received during consultation and in earlier debates, and reflects the position in similar jurisdictions such as Italy, which allow for an uplift of up to one-fifth.

During the passage of the Act we introduced, on the advice of the House, amendments to ensure that the views of the Lord Chief Justice were sought, we have undertaken this consultation, and we are grateful for his consideration of these matters. He was clear that the tariff figures

“demonstrate a material divergence in the levels of damages between those proposed and those which are generally currently awarded”.

He also acknowledged that the tariff figures were similar to those previously tabled before Parliament, when the Government’s intent that the tariffs would be lower than the figures in the Judicial College Guidelines was made clear.

The Lord Chief Justice emphasised that the tariff was a

“narrowly defined statutory derogation from the principle of full compensation through an assessment of damages by the courts”,

but considered that it was not appropriate for him to suggest a change. He made it clear that he understood the Government’s principles underpinning the uplift, but expressed the view that he would prefer the judiciary to have greater discretion.

Following receipt of the Lord Chief Justice’s response, further discussions with the legal advisers to the Joint Committee on Statutory Instruments led to a need to amend the tariff figures to distinguish between damages for claims for whiplash injuries alone and damages for claims for whiplash injuries and minor psychological injuries. We made the Lord Chief Justice aware of these re-presented figures and he was clear that his response, in substance, remained the same.

The Lord Chief Justice also considered that it would be beneficial to review the tariffs earlier than the statutory three years. We do not know now whether we will have enough data in a year’s time to make an informed assessment, so I cannot commit to an early review, but we are open to the possibility. We must first make sure there is evidence available to undertake a meaningful review from which effective conclusions can be drawn. Having considered the points made by the Lord Chief Justice, we will not change our position on the tariff amounts or the judicial uplift of 20%, but we will undertake an analysis of the available data after a year with a view to considering whether an early review is appropriate.

Turning to the medical evidence, the regulations provide that in cases where a claimant lives, or is examined, in England or Wales they must obtain a fixed-cost medical report from an accredited medical expert selected via the MedCo portal. If there are other more serious injuries, the expert has to be listed on the General Medical Council’s specialist register.

The other regulations, which relate to the Financial Conduct Authority, give powers to the FCA to enable it to take effective action to monitor and enforce compliance with the ban on seeking or making pre-medical offers to settle. The FCA is the regulator for insurers and claims management companies which may be involved in settling whiplash claims. These regulations therefore ensure that the FCA has the powers it needs to regulate Section 6 of the Act.

I emphasise that the measures in these regulations are necessary and important. They will provide certainty to whiplash claimants, create savings which will be passed on to consumers and enable the FCA effectively to regulate the ban on the offering and seeking of offers to settle whiplash and associated claims without appropriate medical evidence. I hope that on this basis the Committee will be able to support these measures. I therefore commend them to the Committee.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all noble Lords who have taken part in the debate. Given the time constraints, rather than give a speech in response, I will try to deal with the various points put to me.

My noble friends Lord Hunt of Wirral, Lord Bourne of Aberystwyth and Lord Naseby made the point that there is a risk that the regulations could be subverted by other injuries suddenly becoming the main injury. As the noble and learned Lord, Lord Hope of Craighead, mentioned, Section 3(8) of the Act provides that, where a claimant suffers injuries in addition to a whiplash injury, the court is not prevented from awarding damages that reflect the combined effect of the injuries sustained. The courts will therefore need to determine how mixed injuries are addressed. We are confident that judicial expertise will address these matters on a case-by-case basis, but we will look vigilantly to ensure that the regulations are not undermined, whether by the claims management industry or otherwise, by people reordering their claims so that minor injuries become the main part of their claim.

The noble and learned Lord, Lord Etherton, asked about legal advice. The short point is that the online system has been designed with the claimant firmly at its heart. It is a modern, user-friendly, digital system. There is guidance in the system and digitally disadvantaged claimants who cannot use it can be assisted by a dedicated telephone support centre. We will review the data produced by the system and monitor it. We will discuss the operational performance of the portal on a regular basis with a user group that includes representatives of claimants and defendants, together with third-sector and consumer representatives.

My noble friend Lady Gardner of Parkes asked about passing on savings. The short point there is that the competitive nature of the motor insurance market will ensure that savings are passed on. As she is aware, the regulations provide that insurers have to provide data to the FCA so that it can see the savings being made. I do not want to repeat what I just said, but I assure her that we are very conscious of people who are not online and we want to make sure that they are not disfranchised.

The noble Baroness, Lady Ritchie of Downpatrick, asked about correspondence with the Lord Chief Justice. I hope I gave the Committee a fair summary of that correspondence. We do not plan formally to publish the letters received from the Lord Chief Justice. I venture to suggest that it would not be appropriate to commit to publishing the full correspondence without discussing it with the Lord Chief Justice. It is also important that these discussions can take place on a proper basis.

As to a review of the tariff system, I hope I set out in introducing the regulations that we will consider a review on the timescale that I indicated. I appreciate that the noble Baroness said that some solicitors think that the tariffs are too low. I am afraid that is a debate that we have had on a policy basis on a number of occasions and, for the reasons I set out, the Government are confident that these tariffs are appropriate and give proper compensation where injuries are properly sustained.

I hope that I have dealt with the point made by my noble friend Lord Bourne of Aberystwyth. I have already referred to the contribution from the noble and learned Lord, Lord Hope of Craighead. I very much welcome his support on this matter.

The noble Lord, Lord Bhatia, asked about medical reports. I assure the Committee that the online system is fully integrated with MedCo, so that once a liability decision has been received by the at-fault insurer, claimants can proceed through the system to obtain their report from an accredited medical expert. Importantly, if the at-fault insurer has accepted any portion of liability, it will also pay for that report. We have worked very closely with MedCo to ensure that reports are presented in an accessible, user-friendly format, while continuing to include all necessary information on the claimant’s injury and prognosis. As I said, we will ensure that unrepresented claimants are fully supported through the process.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked a number of questions, first about the online system. The noble and learned Lord referred in particular to unrepresented defendants; I do not know whether he actually meant unrepresented claimants, whom I have already dealt with. So far as defendants are concerned, I assure the Committee that a full programme of webinars has been undertaken where professional users can learn more about the new process and ask questions. Information has been regularly disseminated through an e-shot programme and through social media channels such as LinkedIn and YouTube, and additional information pages will shortly be available on GOV.UK. Third-sector organisations have been taught about the new online service and, therefore, they will be able to signpost people to it. I am confident that, once the system is up and running, it will run well. I hope I have also dealt with the noble and learned Lord’s points about the tariff and a review of the system; I have sought to make the government position clear on that, and also on the data point. If I have misunderstood his focus, as to defendants or claimants, I will perhaps write to him to set out the position in more detail.

The noble Lord, Lord Bradshaw, regretted that it had taken so long. I am very conscious that this debate precedes my involvement in it by some years. All I can say is that we have got here, and the regulations will be up and running shortly—better late than never. The important thing now is to make sure that they work properly and fairly, and that is certainly what we will do. I am absolutely alive to the fact that there is a claims management industry, and that it will shift its focus. We will be equally vigilant to ensure that the purpose of these regulations is not undermined.

I therefore welcome—if I may say—the support in principle for the aims of the regulations from the noble Lord, Lord Ponsonby of Shulbrede. He asked me six questions in a rat-a-tat way. Let me give equally speedy responses, because I understand that we are all limited for time. First, I hope I have dealt with mixed claims; that is a Section 3(8) issue. On the 20% uplift, all I really want to say is that the word used in the statute is “exceptional”. I do not think it is appropriate for me to gloss that word, especially as we now have Pepper v Hart, so I will just say that it is an ordinary English word and falls to be interpreted in the normal way.

Thirdly, on the portal, I can assure the noble Lord that data is secure. I have already explained, I hope, the timing of the review. We will keep the question of its extent and timing under review, and we will look at it in a year’s time, as I said. I am afraid I did not quite understand the point about an inconsistency in application; I appreciate it was not the noble Lord’s point, but he was passing it on. The whole point here is that we have a tariff, so similar injuries really ought to be dealt with in a very similar way. If those who passed the question on to him are not satisfied with my answer, perhaps he will reformulate the question to me—and if he does, I am happy to provide a written response. But there should not be inconsistency, because we have a tariff. The fifth point was that there would be an incentive to claim that the minor injury is in fact the main one; I hope I have dealt with that already. The noble Lord’s last substantive question was on the review, and I hope I have dealt with that as well.

I apologise for running through this at something of a pace, but I have only 10 minutes, of which I have about 15 seconds left. I hope that I have dealt with all contributions. I will check the Official Report and write if I have not, but otherwise I respectfully commend these regulations to the Committee.

Motion agreed.