This article was written for the Association of District Judges Bulletin – April 2017
The forthcoming general election may have brought the parliamentary consideration of the Prisons and Courts Bill to a surprisingly abrupt end, but it is sure to return in the new Parliament. It is to be hoped that this intervening period is used to reassess and recalibrate several of the more unwelcome elements of the legislation to tackle fraudulent whiplash claims.
One of those relates to the proposed fixed tariffs for whiplash claims. As a matter of principle, MASS is opposed to the introduction of a fixed tariff. It would remove the flexibility that is required for personal injury claims to take into account individual circumstances. Injured people will be affected in radically different ways despite having similar injuries. The mechanism of injury should not be a consideration and these proposals will cause disparity and unfairness.
We do not believe that the power of the Courts should be limited when awarding damages for pain, suffering and loss of amenity. The courts should retain their discretionary rights to consider the merits, or not, of each individual case. It should not be the Lord Chancellor’s job to determine the tariff levels. The judiciary should be able to determine the level of compensation that is appropriate, through the Judicial College. We hope that when the legislation does return, this key element is corrected.
If there are to be fixed tariffs for whiplash claims, then we agree with the ADJ that the “proposed tariffs are at much lower and seemingly arbitrarily, as opposed to evidence-based levels than present”. We wholeheartedly agree. The proposed tariffs appear entirely arbitrary and no evidence has been presented as to how they were determined. They should be revised to a much more appropriate level in line with the Judicial College Guidelines. We believe that this would be a much fairer approach and would ensure that the accident victim receives an amount more commensurate to the degree of injury sustained.
As solicitors we fully recognise the urgent need to tackle any form of fraud but this should not be at the expense of legitimate claims for justice. The proposed reforms will completely fail to protect the interests of accident victims. Instead of preventing fraudulent and opportunistic claims they may well have the opposite affect and present an opportunity to those who historically have sought to exploit the system and the vulnerable victims who are just trying to obtain the justice they are entitled to. Solicitors certainly don’t want that and we’re certain that judges don’t want this outcome either.
Chair, Motor Accident Solicitors Society (MASS)