Civil Liability Bill is likely to prove fertile ground for test litigation.
The Civil Liability Bill has provided some clarity on whiplash reform, but uncertainty remains. The second reading (24 April) provides the first opportunity for peers to debate the bill. There will be much deliberation and lobbying.
The definition of ‘whiplash injury’ has been given some clarity with the ‘neck, back and shoulder’ drafting. ‘One or more minor psychological injuries’ is also included. The defendant side would have read this wider definition with satisfaction; the claimant side will have been disappointed.
One question that arises is: are we likely to see an increase in thumb and wrist injuries?
The diagnosis of a minor thumb or wrist injury, caused by a driver bracing before an impact, would allow the claimant lawyer to argue that the injury falls outside the definition and thus outside the tariff.
Most of these injuries are so minor that they attract no separate thought in the valuation process – on either the claimant or defendant side – being included within the wider whiplash valuation. Experts, on instruction from claimant lawyers, may now be required specifically to ask about this.
Information packs sent to injured parties by their adviser may now have to mention these injuries. It would not be untoward for these to include a line such as: ‘You should mention any and all injuries however minor to the expert examining you.’
Thumb and wrist injuries are just one example of what could be a fertile ground for test litigation as the definition provided by the bill is supplemented by the views of the court. The inclusion of psychological injuries is a similar area of likely challenge.
The inclusion of an exceptional circumstances ‘get-out’ clause was unsurprising. But the bill provides no definition of the degree of pain, suffering and loss of amenity that will trigger the clause. The regulations, when publicised, will need to address that issue in detail.
However, since the advent of the predictable fee system the number of challenges made by a claimant and their legal teams to argue circumstances are exceptional has been minimal. Have the costs sanctions attached to a failed challenge influenced this behaviour? We may see a similar approach taken to failed arguments to escape the tariff scheme and whiplash definition.
Many insurers will have been disappointed to see the rules preventing pre-med offers. Given that these often speed up the process for the claimant and their lawyer, allowing them quicker access to their compensation and costs, there may be some on the claimant side who will be equally disappointed.
Yet the bill appears only to prohibit pre-meds when the definition of whiplash has been satisfied. Insurers may seek to continue to make pre-med offers outside the tariff system and run the risk of sanction from the regulator or challenge by the claimant firm.
Many commentators suggest the rules will take effect in April 2019, but October may be more realistic.
Most suggest the rules will come into effect from the date of accident. This is the most logical option, but both claimant and defendant will need time to adjust their systems, processes and financial models. An October 2019 date provides all sides with time to adjust.
Those of us practising when the MoJ Portal was first deployed saw its fragility at first hand. One hopes the new system will be tested and re-tested before launch.
After its second reading the bill progresses to committee stage. It is impossible to forecast what challenges and delays the bill may
face then. But assuming it is wrapped up after the summer recess, it could receive royal assent in the autumn. Regulations could be laid before parliament around a month later.
Only at that point will we really be able to see the areas of challenge and potential test litigation. The devil will assuredly be in the detail.
Ian Davies is a partner at international law firm Kennedys