The Law Commission – why aren’t we using it? – May 2017

The Law Commission - why aren't we using it? - May 2017Originally written for MASS Blogs, this article has since appeared in Modern Claims Magazine, Issue 26, July 2017

Personal Injury lawyers have become used to having to cope with rushed and ill-thought out changes to the law. The proposed changes to damages for whiplash were tacked onto the Prison and Courts Bill after an indecently hasty consultation. Apart from the unfairness to claimants who have suffered a whiplash injury and the sheer illogicality of the changes, MASS and the Strategic Alliance rightly criticised the evidence base and the assumptions behind the proposals contained in the consultation document, and offered expert evidence on both the numbers of RTA PI claims in recent years and the economic impact of the changes. Lip service is paid to the input from experts and those who know most about the law, and the proposed changes were largely the same as those put forward in the consultation document. It is a depressing state of affairs for practitioners when their experience is routinely ignored and major changes to tort law are made at the behest of powerful insurance industry lobbying.

If only there was some independent statutory body which could properly consider all the issues and put forward their recommendations to the government. Oh, hang on, there is, and it’s called The Law Commission. Set up in 1966, the Commission’s remit, amongst other things, is to conduct research and make systematic recommendations as to law reform for consideration by Parliament. The Law Commission has not reported on Personal Injury since 1998, nearly twenty years ago. Interestingly, the subject of that report was a wide-ranging review of non-pecuniary damages, including a consideration of the question of a legislative tariff for the level of general damages. After consulting for six months (imagine that!) and considering the views of a long list of concerned bodies, practitioners and Judges they rejected a tariff system as it “would politicise the question of what damages for non-pecuniary loss should be”. They also made the point that a tariff system would be “too rigid” especially when several injuries are suffered together, and there would be a real danger that an overall reduction in the general level of awards would follow (£20 for a psychological injury anyone?). Judge Anthony Thompson QC is quoted in the report as saying that a legislative tariff would “reflect the view of the Government with enormous input from the Treasury and after high-powered lobbying by the insurance industry”. Blimey! Did that man have a crystal ball?

The politicisation of this particular area of law, the refusal to take on board the views of experts, and the knee jerk and chaotic implementation of changes, serves no-one and cheapens the principles of a fair and just legal system. We have a perfectly good body to undertake extensive reviews of law reform in The Law Commission. Why aren’t we using it?

Fiona Scurlock

PI Solicitor at Gray Hooper Holt LLP and MASS Regional Co-ordinator for the South East

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