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Reforms Update – Delay finally announced, with the added bonus of some outstanding policy decisions as well

28 February 2020

Today we have finally had confirmation from the Lord Chancellor that the reforms are being delayed to 1 August 2020 – link here: Implementation of the Whiplash Reform Programme - GOV.UK

In itself, the announcement of a delay in implementation of the Civil Liability Act is perhaps one of the biggest non-news stories of recent times as it has been inevitable now for some months. The very fact that the MOJ haven’t been able to even come out and confirm the delay until 26 working days before it was due to come into effect shows some of the pressures they have been under. 

Whilst we have a little bit of breathing space with a new proposed date of 1 August, we still however urgently need to see the draft secondary legislation, including the proposed tariff which requires a consultation with the Lord Chief Justice, together with the proposed civil procedure rules and protocol changes in order that both sides of the industry can properly plan for implementation. Otherwise all that is happening is we are kicking the can slightly further down the road storing up the same set of problems. 

In an ideal world, the government would have set out a timetable for when those will be produced, instead of a bland assertion they will be produced "in sufficient time". Some might say that for 1 August implementation sufficient time would have been 1 February but the CPRC are next due to meet on 6 March and if we can have sight even of some draft rules prior to the Easter break it will give everyone more confidence that 1 August is achievable. 

The MIB statement said that "provided we have their (CPRC) decisions by early May, and the changes are not too far away from what we’ve built to date, we are comfortable we will be ready for the new launch date". 

It is fair to say that confidence based on what has happened to date, is understandably low that the 3 month hiatus will be sufficient time to tie all the loose ends. 

Talking of which, we now have final confirmation that ADR will not be a part of this which was something that had been understood for some time but not confirmed as a policy decision. This could leave the MOJ open to arguments over fairness/access to justice and while they refer to a potential solution in the ministerial statement, again there is no detail as to what the "bespoke processes" are that the MOJ say will be developed to enable litigants to go to court to establish liability. 

To fill the gap highlighted previously around infants and protected parties being caught by the tariff but unable to access the Portal, the government has indicated that they will be able to pursue their claims under the current fast track for the foreseeable future. This is presumably irrespective of value as most tariff claims should be below the existing small claims limit of £1000, and means that they can access legal representation under the existing cost regime. This effectively increases the "value" of a child's claim and insurers will have to closely monitor whether such infant passenger claims increase, and the validity of such claims. Phantom passengers might be much more valuable if they are under 18… 

So whilst it is good that we finally have the delay confirmed, and the bonus of a couple of key policy decisions, the detail needed is still awaited otherwise we will be back in the same position in June.

Regards 

Nigel

Contact

For more inforation please contact, Nigel Teasdale, Partner 
Head of Motor & Fraud, M +44 7752 709114 Nigel.Teasdale@dwf.law

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