Still a lot to play for on Civil Liability Bill, says Kennedys

The Civil Liability Bill is a big stride in the right direction but there remains a lot to play for on the detail to ensure it achieves its aim, we have warned.

The bill, first announced on Tuesday, was published yesterday. It aims to curb the excesses of low-value personal injury claims and set a new framework for calculating the discount rate.

Partner Ian Davies, who specialises in motor claims, says: “The objectives underlying the bill are right but, to achieve them, the Ministry of Justice will need to make sure the detail gives as little wiggle room for challenge as possible.

“For example, the definition of whiplash includes ‘neck, back or shoulder’ injuries that will be subject to the proposed tariff of claims for injuries of less than two years duration.

“But does this mean that a minor thumb or wrist injury, caused by a driver with advance warning of the impending collision bracing themselves, allow for their claim to sit outside of the tariff?”

He adds: “It is worth noting that the potential for exceptions are outlined but no definition of exceptional is provided. Will this create test litigation to provide the required certainty?”

As another example, Ian Davies says: "While the bill deals relatively thoroughly with outlawing pre-medical offers, it seems to allow them in cases that do not fall within the definition of whiplash. Was that the intention?”

On the discount rate, partner Mark Burton says: “The fact that we have a negative discount rate shows how flawed the current methodology is, when in the real world claimants are achieving positive returns from low-risk investment strategies.

“The Ministry of Justice is right to press ahead with reforms that balance the importance of fully compensating injured people with the need for a better and clearer process governing reviews of the discount rate, in order to avoid any repeat of last year's big shock to the system."

Kennedys and its clients will be working to help ministers ensure that the whole bill leaves as little room for ambiguity and argument as possible.

Mark Burton, Partner, London

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Progress at last: Civil Liability Bill brings promise of certainty on discount rate and whiplash reform (PDF, 731 KB)