This article first appeared in Modern Insurance Magazine Issue 32, July 2018
With characteristic clarity, Lord Woolf eloquently summed up the Government’s plans: “There has never been a case where legislation deliberately introduces injustice into our law.” To those of us actively campaigning against the Government’s proposed whiplash reforms, it does indeed remain astonishing that it is the explicit intention to deliberately discriminate against honest and legitimate claimants following a motor accident.
Nevertheless, that remains the position. After three months of consideration in the House of Lords, there is now a long wait over the summer until possibly September, definitely by October, when consideration of the Civil Liability Bill will kick-off in the Commons.
The passage of the Bill through the Lords was considerably tougher than had been anticipated by its champions. Certainly, Lord Keen of Elie did not anticipate significant opposition when MASS met him in late March. Contrast DAC Beachcroft’s Lord Hunt of Wirral at the Bill’s Second Reading predicting that “the reforms in the Bill are in no sense controversial” to his acknowledgment at Third Reading that: “Part 1 has indeed proved to be more contentious than many of us expected.”
Severely criticised by the Lords’ own Delegated Powers and Regulatory Reform Committee for being “skeletal”, the Ministry of Justice was forced to hastily publish draft regulations ahead of the Committee Stage. Those same draft regulations were then plundered for Government amendments, putting the definition of whiplash into the Bill, for the Report Stage. The intervention of such intellectual heavyweights as the aforementioned Lord Woolf, Lord Judge and Lord Pannick undoubtedly added to the intensity of the Report Stage and the narrow defeats on two amendments on the tariff and raising the small claims limit.
Whilst the champions of the reforms undoubtedly breathed a big sigh of relief at the Bill departing the Lords largely unscathed, the war is far from over. The Justice Select Committee’s devastating critique of the proposed increase in the small claims limit and growing unease at the sheer unfairness of the proposals on the Conservative backbenches suggests that there could yet be several twists in this saga before anything is decided. And I haven’t even mentioned the development of the LIP-CMC Portal.