This article first appeared in Legal Futures, 17th January 2020
The Ministry of Justice (MoJ) continues to insist that the whiplash reforms will come into force in April, even though the rules which will enable lawyers and compensators to prepare have still not been published.
Next week, they will be able to register to use the new whiplash portal and the MIB – which is building the system for the MoJ – says it is on track to launch as planned.
But both claimant and defendant lawyers argue that it is impossible to prepare without the policy decisions and new provisions of the Civil Procedure Rules which will underpin the regime.
A host of issues remain outstanding, such as how the provision of ADR will work, how the system will deal with claims where only some of the injuries are covered, integration with MedCo, and the handling of minors’ cases.
A Ministry of Justice spokesman confirmed to Legal Futures that April remained the plan, but there was no update on when the rules would be published.
An MIB spokeswoman said: “The MIB’s work to build and deliver the service on behalf of the MoJ is on track for launch in April 2020. The MoJ are continuing to progress policy and rules approval processes that underpin the legislative changes.”
Registration for the portal opens on 22 January. The MIB said it has been “designed to be simple and straightforward and the process will appear familiar to anyone who has registered for the Claims Portal”.
Legal Futures understands that people who have seen what has been built so far praised the front-end and say it should be able to handle straightforward claims. But they questioned whether it would be able to cope when complication arose, such as liability being denied or a second medical report needed.
“They currently cannot commit to that with so many outstanding and fundamental issues yet to be resolved and the next round of testing not due to start until the end of January. Either these gaps are plugged very urgently or the difficult decision should be made to delay until a later date.”
Mr Nicholls said there was a “very real danger” of the reforms being introduced chaotically, with undue haste when they are not ready, “creating a basic and incomplete process” for litigants in person.
Asked whether groups should stop calling for a delay and instead start urging their members to get ready, Gordon Dalyell, president of the Association of Personal Injury Lawyers, said: “How can we possibly tell lawyers how to get ready when we don’t know exactly what they are getting ready for?
“We don’t have the rules, we still don’t know what is happening with aspects of the process, and we don’t know exactly what development work has been continuing during the purdah period [of the general election].
“That’s all a major challenge for the lawyers, but what about the people who will be going through the process without legal help? It’s hard to see how injured people are going to cope with this confusion.
“There is every chance they will have to go to charities for help, but as far as we’re aware, there has been no meaningful discussion with the charities about how they will cope.
“This is a complex legal system which is supposed to be used by real injured people who have no legal experience. It is time to stop, reassess where we are, and take the time to get this right.”
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, added: “An effective, fully tested portal should improve the claims process for injured people and for all consumers if the government’s promised savings emerge and are passed on. The challenge is that we seem nowhere near this outcome.
“There are no rules, no ADR mechanism and none of the appropriate consumer safeguards in place. Most egregious of all is that the current plans will put up all-but insurmountable barriers to justice for children and protected parties.
“So the MoJ has a seemingly impossible amount to do in a very short period of time. It would be better for all to get this done right rather than right now.”
A spokesman for the Association of British Insurers said the industry continued to work towards an April start date, and “press for the necessary outstanding rules to be published as soon as possible”.
The Forum of Insurance Lawyers was more explicit about the dangers. Immediate past president James Heath said “the sands of time are diminishing”.
He explained: “If we are going to launch in April, then the time has come for clarity and indeed visibility over the final process, rules and portal service.
Without this, neither claimant representatives nor compensators can make the key decisions required to make operational changes necessary for the new regime. These are decisions that cannot be made on hypothesis or guesswork – certainty is required.
“Without this, there is understandable concern at whether those changes can now be made in time for an effective April launch.”