On 31st May 2021, a new system will come into force for dealing with whiplash injuries arising out of a road traffic accident (RTA). This system is a complete overhaul of whiplash claims as we know it.
Most people know that currently if they have an RTA, for which a third party is at fault and they suffer a whiplash type injury, they can instruct a solicitor to bring a claim on their behalf. Depending on the injuries sustained, the Claimant will usually receive suitable compensation and their Solicitor will be paid their basic costs by the third party’s insurer. The Claimant should therefore receive the majority of their damages, less a small deduction if the Solicitor has an agreement for recovery of their success fee from the Claimant.
After 31st May 2021, some whiplash type injuries will be dealt with as small claims under a new protocol. Whilst there are some exceptions to this new system, if a Claimant finds themselves in this new system, they will find this is a different system to what they may have experienced before. The first change is that the new system is designed for Claimants to bring their own claims without the need for a Solicitor. This does not mean they cannot use a Solicitor, but they will have to pay their Solicitor for representation, rather than the Solicitor being paid by the third party. This is because small claims are claims for which you cannot recover legal costs. The new system can be found at https://www.officialinjuryclaim.org.uk/ and is an online portal for the claim to be submitted and communications between the parties to take place. Other changes include a tariff system for damages, which are less favourable than the level of damages currently in place. See table below which sets out the likely damages which can be recovered for whiplash type injures up to £5,000. Column 1 sets out the damages for the physical injury and column 2 shows the damages where there is minor psychological injury as well.
Duration of Injury Amount – Amount –
Regulation 2(1)(a) Regulation 2(1)(b)
Not more than 3 months £240 £260
More than 3 months, but not more than 6 months £495 £520
More than 6 months, but not more than 9 months £840 £895
More than 9 months, but not more than 12 months £1,320 £1,390
More than 12 months, but not more than 15 months £2,040 £2,125
More than 15 months, but not more than 18 months £3,005 £3,100
More than 18 months, but not more than 24 months £4,215 £4,345
Claimant representatives fear that Claimants may become lost in the complex system if there are any disputes about the claim or the damages, or may decide not to bring a legitimate claim for fear of being unrepresented. For Claimants who decide to use a Solicitor, they may find that they do not receive all of their compensation, as they will have to pay for Solicitor’s fees themselves.
It is clear that the new system has so far caused more questions than answers as practitioners try to navigate the new rules and plan for the changes and it is likely to take some test cases at Court before all becomes clear.