Citing a “sensible and pragmatic approach,” Secretary of State for Justice Robert Buckland on Monday announced a further delay in the implementation of the whiplash reforms set out in the Civil Liability Act 2018. In his ministerial statement, Buckland said the government will continue to work with stakeholders to ensure everyone is sufficiently prepared.
“We have listened carefully to the concerns raised by stakeholders, in particular the need for as much notice as possible to take the necessary steps in anticipation of these reforms and to prepare their businesses for the changes to how small road traffic personal injury claims are managed,” stated the Lord Chancellor.
“We understand the importance of industry preparedness and, after consideration, it is for that reason we have decided to allow an additional short period of time to further accommodate this. As such, we will implement the whiplash reform programme in May 2021.”
The programme, following multiple timetable adjustments, was supposed to be implemented in April this year. Insurers, trade bodies, and other stakeholders have been quick to react in response to the latest rescheduling.
Association of British Insurers (ABI)
“We urge the government and rules committee to complete and publish the new rules as soon as possible so that insurers can prepare to engage with the new portal and provide a good service to customers,” said ABI assistant director and general insurance policy head Mark Shepherd, who said the association will continue to work with the government to support the programme.
“We have always made clear that insurers will require a minimum of three months from publication of the final rules to be ready and we remain firmly committed to this.”
Association of Consumer Support Organisations (ACSO)
Calling the move “inevitable,” ACSO executive director Matthew Maxwell Scott believes the decision to delay raises a broader point. “It is abundantly clear that trying to deliver this project in relative isolation from experienced industry practitioners is not working,” he asserted, referring to the litigant-in-person (LiP) portal.
The executive director – who is of the view that it is the industry itself that is best placed to ensure implementation happens as a “coherent package” – went on to state: “Now that we face more delay, ministers must rethink the route to market for the whiplash reform programme and get the claims sector much more involved.
“The COVID crisis has shown the capacity of our sector to come together to keep the wheels of justice turning. It’s time for us to step up to the plate again and work with the MoJ (Ministry of Justice) and MIB (Motor Insurers’ Bureau) to bring these reforms to fruition.”
Maxwell Scott added that many ACSO members, which are claimant sector organisations, have already re-modelled their businesses in readiness for the reforms.
“They have every incentive to ensure the reforms are effectively implemented, and we would welcome the opportunity to provide the expertise required,” he said. “There’s no going back, but as things stand we’re not really going forward either, so let us help the government get the portal right.”
Association of Personal Injury Lawyers (APIL)
President Sam Elsby had this to say, following the announcement: “Work on the new system has been dangerously compressed to meet this artificial deadline, so we welcome any delay which is used to address our concerns about outstanding issues of critical importance to injured people.
“We need to know exactly how the proposed new ‘bespoke’ court process will replace ADR (alternative dispute resolution); we need to know the outcome of consultation with the Lord Chief Justice about the new whiplash tariffs, and there needs to be clarification about how mixed claims will be handled in the new system.”
The APIL officer added that the public must be properly informed well in advance about the new claims system.
“This is a rare bit of good news for consumers, who have endured a long wait for the whiplash reforms,” commented Aviva claims director Andrew Morrish. “Consumers will appreciate the certainty that this update provides, and for good reason: the reforms will reduce pressure on the cost of motor insurance, while ridding our roads from crash-for-cash fraudsters.”
According to Morrish, Aviva was the first insurer to call for these reforms. He vowed: “We stand by our promise to pass on 100% of the savings from the reforms to our customers.”
For Carpenters Group director Donna Scully, the new delay isn’t enough.
She offered the following insights: “Although frustrating, given the outstanding issues to be resolved and the backdrop of the worsening pandemic, a further delay was inevitable, but only allowing an extra month when we have yet to see the new rules is unreasonable both for those trying to develop a workable process once we have the rules and for customers who need the system to work from the start.”
Using the MedCo system as an example, Scully stressed how much harder it is to amend a process that is already up and running.
“The new claims process must be fully fit-for-purpose when launched to smooth the transition and to minimise the increased risks of fraudulent behaviour,” she said. “There are significant dangers if there is a rush to implement too early.”
Credit Hire Organisation (CHO)
Interim chief executive Peter Gomes – whose camp represents businesses providing mobility to customers while their vehicle is off the road following an accident – reacted by asserting: “We welcome the Minister’s acknowledgement that the challenges created by the pandemic require more time for businesses to prepare, but we are yet to be convinced that those challenges, which have already delayed the implementation of the small claims portal by over a year so far, will be resolved by May.”
“Our members remain concerned that the non-injury related elements of the claim, including credit hire and repair, are still nowhere near being resolved, with a risk that in the new regime consumers may be liable for mobility costs that should normally be paid by the at-fault insurer,” continued the CHO interim CEO. “We are happy to work with ministers and the MIB to resolve this critical issue, but we do not believe the portal can be implemented in May unless this is dealt with.”
“I think we can all appreciate that this is a challenging time, but the proposed whiplash injury changes preceded the pandemic,” First4Lawyers managing director Qamar Anwar pointed out. “The fact that the government is still not in a position to provide the necessary detail raises questions about the validity and evidence base around these reforms.
“While it is encouraging that the Lord Chancellor recognises the importance of industry preparedness, I would remind him that without the pre-action protocol and practice directions governing the new regime that businesses can do very little to prepare.”
Anwar thinks it is both predictable and lamentable that there remains a lack of a clear timetable.
“Now might be the time for the Ministry of Justice to remind itself of its objectives, namely: ensure access to justice in a way that best meets people’s needs and support a flourishing legal services sector,” noted the MD. “These reforms fly in the face of both.”
Forum of Insurance Lawyers (FOIL)
Expressing similar concerns surrounding the exact timing, DWF partner and FOIL past-president Nigel Teasdale stated: “The Secretary of State for Justice has confirmed that the date for implementation of the whiplash reforms will be ‘May’ although it isn’t entirely clear whether the new rules and portal will apply to claims arising from accidents after May 01 or some later date in May.
“That is likely to depend on when the rules are published which is likely to be at the end of this month or early February with the CPRC (Civil Procedure Rules Committee) having a meeting scheduled for February 05 which would give the three-month period of preparation previously requested by all parts of the industry.”
More importantly, Teasdale is of the belief that there will be gaps and/or areas of controversy in the new rules once they are released, as well as outstanding issues such as those involving non-tariff damages.
“We welcome this sensible decision to delay the portal in order to confirm the rules by which it will operate and ensure that consumers are properly informed about the forthcoming changes in access to civil justice, including the need for legal expenses insurance (LEI) cover,” commented Graham Pulford, chief executive of LEI provider handl Group.
The CEO added: “The judiciary has made clear that LEI is appropriate protection for consumers, so this delay will give LEI providers like us the opportunity to work with MoJ and the FCA (Financial Conduct Authority) to build consumer awareness of this cover and make sure LEI is readily available to consumers.”
Meanwhile Pulford cited the lack of an ADR mechanism as among the major challenges holding back the implementation of the LiP, “so we are happy to offer our support to MoJ and help fix this outstanding issue,” he said.
For Kennedys LLP head of motor Ian Davies, the decision to delay by one month is sensible. “All parties, be they lay claimants, claimant lawyers, insurers, claims handling companies, or defendant law firms, will need at least three months to update and amend their systems to accommodate the new rules,” he explained.
“What is urgently required are the rules themselves. The delay should not delay the release of the rules; the more time all parties have to consider the rules and implement system changes will make for a smoother implementation for all.”
LV= General Insurance
A little more forgiving among the pack is LV= General Insurance claims director Martin Milliner, who said: “Given the backdrop of COVID and Brexit, a short delay is absolutely understandable. While the final version of the rules have yet to be shared, the previous engagement with the Motor Insurers’ Bureau and the Ministry of Justice has been strong and should enable both compensators and the claimant market to be ready in time for a successful launch in May.
“That said, on day one the new ways of working are unlikely to be without teething problems, so our focus will be embedding the new system in a way that makes sure claimants, whether represented or litigants in persona, are treated fairly.”
Chief executive Shirley Woolham shared the following thoughts: “We are not surprised that ministers have chosen to further delay the LiP portal given the breadth and depth of implementation challenges that still remain. It is important that the portal improves on the current system for settling with minor injury claims, so it is welcome that there will be more time to create a good customer experience.
“The industry urgently needs clarification of the rules that will govern the portal and clear guidance from MIB that will allow firms such as Minster to advance and complete integration.”
Woolham added that they are ‘reform-ready’, having already launched Minster Law’s own digital claims journey which will be able to plug into the official portal.
“We have also begun piloting an alternative dispute resolution solution with partners, and we would be delighted to share our learnings with the MoJ, as the continuing absence of ADR on the official LiP portal is a key stumbling block to getting the portal airborne,” highlighted the CEO.
“My message to the claims industry is not to wait for the government.”
Motor Accident Solicitors Society (MASS)
“With key issues outstanding, the new rules not yet finalised, and a worsening backlog of court cases, a further delay is clearly necessary, but only allowing an extra month is neither pragmatic or sensible and gives very little extra time to prepare,” lamented MASS chair Paul Nicholls.
“The new process must be fit-for-purpose and the sector needs time to adjust to the new changes. If the new rules are not published shortly, the new May date will be quickly redundant. Crucially, the entire process needs to be clearly explained for the future unrepresented claimant.”
Nicholls also stressed that the changes should neither be rushed nor rolled out half-baked.
“Rather than plucking a date out of the air which may be delayed further, isn’t it now the time to conduct a more thorough review of the proposed changes to ensure that they work and can actually be delivered,” he said. “The reforms are important and fundamentally change the claims process.”
Motor Insurers’ Bureau
MIB chief executive Dominic Clayden, meanwhile, confirmed that the build of the Official Injury Claim service remains on track.
“This is based on the current assumed scope agreed with the MoJ,” noted Clayden. “MIB will complete the last stages of the build in conjunction with MoJ when the Civil Procedure Rule Committee has agreed the new rules and new pre-action protocol for the new service.
“MIB continues to work closely with MoJ on the run-up to its public launch campaign to help businesses prepare for the launch of the service. We will provide a further update as soon as we can.”
RSA Insurance Group
For RSA’s Julian Heath, director of motor and injury claims in the UK, seeing the rules and the new claims platform at the soonest possible time is of utmost importance.
“It is good news to see that the government remains fully committed to the whiplash reforms, and that implementation has moved to May this year,” commented Heath. “But it is absolutely essential that the industry has sight of the final rules and the portal as swiftly as possible in order that we can complete our preparations for the long-awaited new regime.
“For this to be a success, getting the implementation right is vital – and will play a crucial role in limiting fraudulent and opportunistic whiplash claims which have for too long been a burden on innocent motorists.”