Market Round Up: December 2024
The big PI news in recent weeks was the government’s announcement of a planned 15% increase in the whiplash tariff, reflecting inflation since it was introduced in 2021 and including a ‘buffer’ to take account of predicted inflation until the next review in 2027.
Lord Chancellor Shabana Mahmood finally published the first statutory review of the Whiplash Injury Regulations 2021, which her Conservative predecessor Alex Chalk was due to publish in late May, only to be thwarted by the general election being called.
Ms Mahmood decided to make no other changes to the regulations and the review was explicitly not an evaluation of whether the whiplash reforms have delivered on the policy intention. A separate post-implementation review will be completed “in due course”, a civil servant phrase that could mean two months or two years. (Still no news on the outcome of the RTA medical reporting consultation, which closed in October 2023, by the way.)
Importantly, the review found no evidence that claimants were systematically increasing the prognosis period for their whiplash injuries to move into higher bands on the tariff, although it highlighted disagreement around the definition of minor psychological injury, leading to more secondary medical reports to assess psychological injuries.
Unsurprisingly, claimant representatives thought the increase should have been more, and the sense I get from compensators is that they were actually pretty pleased with the outcome (their official position, that there should be no increase at all, seemed unlikely to succeed). Usefully for the Ministry of Justice, the increase keeps the top end of the tariff just below the £5,000 limit for the Official Injury Claim portal and it ruled out raising the limit.
Other notable recent events include the Supreme Court ruling in Oakwood Solicitors v Menzies, which said solicitors cannot deduct their costs from a client’s damages without their agreement to the precise amount, and a renewed focus on the term ‘no win, no fee’ in the wake of the collapse of SSB Law at the start of this year.
It comes in the context of failed cavity wall insulation claims, where the after-the-event (ATE) insurance put in place by SSB is being repudiated, leading to successful defendants and their insurers seeking to enforce substantial costs awards against impecunious clients.
This has triggered substantial media coverage as well as activity in Parliament and a Solicitors Regulation Authority investigation into ATE insurance. There was a meeting between victims and MPs in October calling for government action that, among other things, highlighted concerns with the phrase.
Debra Sofia Magdalene, an administrator of the SSB Victims Support Group, said: “On the legal side, we need to ban this term ‘no win, no fee’ because it’s very misleading. We need fair practices to ensure that homeowners aren’t trapped by legal and financial costs due to negligent work.”
Another speaker at the event, Steve Playle, a Trading Standards manager for the City of London Corporation, said he had a “real bee in my bonnet” with ‘no win, no fee’. “There is no such thing. This is the scandal now and I think the next [‘no win, no fee’] scandal will be diesel emissions claims. That’s just a bubble waiting to burst.” Other speakers also questioned the validity of the ‘no win, no fee’ label.
Finally, Ms Mahmood now has a new courts and legal services minister following the Civil Justice Council’s National Forum on Access to Justice in late November. She had been due to speak at the event but ducked out because she wanted to attend the assisted dying debate in Parliament. She sent the then minister, Heidi Alexander, in her place, who explained how she had spent four months getting to grips with civil justice and proceeded to lay out the government’s plans for improving the system, acknowledging the significant delays in the county courts.
Stressing that civil justice “in no way plays second fiddle” to criminal justice, Ms Alexander recounted how she had been asked to name the one thing she hoped to achieve in the job. By the time she left her post, she said, “I’d like to do so having helped to make it cheaper, easier and more straightforward for normal people, your average person on the street, the small business owner to access justice”.
Unfortunately, less than an hour later, she had received a call from Keir Starmer and been appointed the new transport secretary. I’m not sure she managed to completely fix civil justice in the intervening period.
Neil Rose is the Editor of Legal Futures
