The Civil Liability Act 2018 - What we know so far

• United Kingdom

• Personal injury claims litigation - Personal Injury Bulletin

10-01-2019

Whilst the country was preparing for the Christmas break, The Civil Liability Bill was going through the final stages of the Parliamentary process and on 20^th December 2018 the long awaited Civil Liability Act 2018 (“the Act”) was born.

The Act introduces provisions for the review of the discount rate and reforms the law and procedure relating to Whiplash claims.

Only part of the Act has come into force so far, so the full impact of the reforms upon personal injury claims going forwards is still unknown, but The Act does provide us with sufficient information to make some reasonable predictions:

The Discount Rate:

Under The Act the review of the discount rate has to commence within 90 days of Royal Assent, i.e. by 19 March 2019. The review process is dictated by The Act and not by reference to the Index-Linked Government Stocks, which is what was used historically.

Evidence relevant to the setting of the rate is already being collated by the MOJ, the deadline for making any submissions to them on the point lapses on 30 January 2019.

Once the review has been completed, the Lord Chancellor will have 140 days (6 August 2019) to determine what the new rate will be. She will then publish an Order setting out her decision. There is speculation within the industry that the new rate may be within the region of 0% to 1%. The Lord Chancellor has discretion to prescribe different rates for different classes of case.

Whiplash:

Damages for whiplash injuries lasting up to two years will now be set by reference to a tariff, which is still yet to be set by the Lord Chancellor.

The Act defines a “Whiplash injury” as:

“an injury of soft tissue in the neck, back or shoulder that is…a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder”.

A “Whiplash injury” does not include:

“an injury of soft tissue which is part of or connected to another injury and the other injury is not an injury of soft tissue to the neck, back or shoulder”. For example, a soft tissue injury to the surrounding area of a shoulder fracture.

We can expect to see a tariff which will include cases where there is a minor psychological injury, such as travel anxiety, but the tariff will not apply to claims by motorcyclists, cyclists, pedestrians or any other road user not using a motor vehicle. The Act provides for the court to be given discretion to apply an uplift to the tariff in ‘exceptional circumstances’, which are yet to be defined. It is anticipated that such an uplift will be in the region of 20%. Settlement of whiplash claims before a medical report has been obtained has now been banned.

The tariff will be set for the 3 years following the date when the reforms come into force, at which point the Lord Chancellor can review or amend.

A new, more simple and user friendly portal system is being designed for whiplash claims, with testing due to commence in October 2019. It is expected that this system will be tailored to litigants in person and a surge in such claims is anticipated once the reforms come into force.

It is the intention of the Government that everything will be in force and ready to go by April 2020.

The Small Claims Limit:

Whilst The Act does not touch upon the small claims limit, it is certainly on the Government’s agenda and is expected to be part and parcel of the reforms when they come into force. The intention is for the limit to increase to £5,000 for Road Traffic Accident claims and £2,000 for all other personal injury claims. Again, it is anticipated that this change will come in in April 2020 but there are no guarantees as to whether this will happen or whether it will be delayed further.

Conclusion

Whilst many details of the reforms remain unknown, significantly we know that the new discount rate will be set no later than 6^th August 2019.

This is likely to have a huge impact upon cases with substantial future losses and practitioners on both sides should review tactics on these cases with this knowledge in mind.

We also know that the reforms will make it much easier for litigants in person to run their own whiplash cases. This won’t necessarily make it easier for the practitioners who are responding to them. Consideration will need to be given as to the approach to be taken in handling such matters.