A New Era Begins Whiplash Reforms/Official Injury Claims - 8 March 2021
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Whiplash Reforms/Official Injury Claims
A New Era Begins
8 March 2021
Overview
The MOJ has finally published the detailed rules implementing the Whiplash Reform Programme which has
been eagerly awaited by the insurance industry since the Civil Liability Act was passed by Parliament in 2018.
Although much of the high-level detail regarding the Whiplash Reforms was previously known, the devil was
always going to be in the detail and the amendments to the CPR and new Pre-Action Protocol (PAP) have now
been published. Although this new Whiplash process is aimed at unrepresented Claimants, it is of note that
the new PAP (entitled “Pre-action Protocol for Personal Injury Claims below the Small Claims Limit in Road
Traffic Accidents”) is over 100 pages long!
Despite the delays to date it is now positive for the insurance industry that the Whiplash Reforms will now
come into effect for RTAs on or after 31 May 2021. The Motor Insurance Bureau (MIB) has already
commenced webinars to publicise the new Official Injury Claims (OIC) Portal and the MOJ will also be running
publicity campaigns and webinars themselves. Importantly, there will be a Portal training environment
available to the insurance industry from 5 April 2021 and a “Sign posting Toolkit” with user guidance on the
new whiplash process and Portal will also be published in April. Given that the OIC process is aimed at being
user friendly for unrepresented Claimants (Litigants in Person) and the public generally then the guidance
should be of huge benefit once published. The MIB are also launching publicity channels for Claimants in May
2021 prior to the launch of the OIC Portal on 31 May 2021.
Although the increase in the Small Claims Track (SCT) limit up to £5,000 for whiplash injuries damages and
the no legal costs environment is welcome, there are issues for insurers to consider and navigate as different
legal processes will be operating at the same time. These include:
• Current PAP for low value personal injury claims in RTAs (below £25,000 from 31/07/13)
• New PAP for RTA SCT claims
• Non-Protocol vehicle related costs – either with or without a personal injury element
As with any major change to the personal injury world then both challenges and opportunities arise for insurers.
The announcement from the MOJ states that the new process is to help parties to reach a fair settlement and
the OIC Portal is designed to enable Claimants to make and settle RTA related personal injury claims by way of a
modern accessible digital Portal. They have also referenced the Civil Procedure Rule Committee comments that
“the impression is that the Portal build (OIC) so far is impressive, user friendly and uses clear and accessible
language.” Having access to the Portal training environment from 5 April 2021 will be vital in terms of preparing
claims teams for the go live date including the drafting of process flows and standard documents for
policyholders to complete e.g. Annex A – Defendant’s Version of Events (attached).
Small Claims Track (SCT) limit
The SCT for personal injury claims arising from an RTA is increased to £5,000. This limit applies to general
damages for pain, suffering and loss of amenity. The overall SCT for all aspects of the claim remains at £10,000.
Although the MOJ previously indicated that the SCT for EL/PL claims will be increased to £2,000 this has not
been enacted. The SCT for EL/PL injury therefore remains at £1,000.
Tariffs – fixed whiplash damages
The whole purpose of the Civil Liability Act 2018 was to fix whiplash damages at much lower figures than were
previously being awarded via the Judicial College Guidelines (JCG). There is no doubt that the fixed tariffs at the
lower end are much lower than JCG and the tariffs relate to whiplash injuries including a minor psychological
component lasting for up to 2 years.
1The Whiplash Injury Regulations 2021 is a Statutory Instrument setting out the new tariff and is slightly higher
than previously indicated by the MOJ and has a new second column for an increase where minor psychological
injury has been sustained. Unhelpfully, “minor psychological injury” has not been defined. The tariffs are as
follows:
Whiplash plus minor
Whiplash Injury Duration Whiplash only
Psychological Injuries
Not more than 3 months £240 £260
More than 3 months but not more than 6
£495 £520
months
More than 6 months but not more than 9
£840 £895
months
More than 9 months but not more than 12
£1,320 £1,390
months
More than 12 months but not more than
£2,040 £2,125
15 months
More than 15 months but not more than
£3,005 £3,100
18 months
More than 18 months but not more than
£4,215 £4,345
24 months
Although these figures may be uplifted by 20% in exceptional circumstances, in practice, it is hard to envisage
such uplifts being available to Claimants in the vast majority of cases. However, this is an element that will be
at the examining Dr’s discretion and it will be hard for the Defendant to dispute if the medical expert has com-
mented within the report that the accident and/or the injury involved exceptional circumstances.
Vulnerable Road Users
There are exceptions to the new £5,000 SCT limit and certain categories of Claimants are specifically excluded
from the new RTA Small Claims Protocol and new OIC Service. These include:
• Children
• Protected parties i.e. someone who lacks the mental capacity to litigate the claim
• Vulnerable road users – motorcyclists, pillion/sidecar passengers, cyclists, pedestrians, horse riders and
those using mobility scooters
Interestingly, although infant claims are subject to the tariff, they will not be subject to the cost limitation and
will be dealt with through the existing MOJ Portal.
“Vulnerable road users” claims will be valued outside the tariff and subject to current fixed costs and submitted
in the current MOJ RTA Portal. The new OIC Portal only applies to injury claims and therefore for vehicle relat-
ed damage claims only (with no injury element) then such claims will not be appropriate for the OIC Portal
dealt with outside this.
OIC Portal
In the lead up to the launch of the OIC Portal on 31 May 2021, then the MIB and MOJ are running webinars and
Q&As. There will also be a Portal training environment available from 5 April 2021 and therefore it would be
vital for insurers to start using the Portal in order to be able to train claims handlers, prepare process flows and
draft training material.
2Some major points of interest in respect of the OIC Portal include:
1. Unrepresented Claimants will be encouraged to use the new OIC Portal and the MIB are launching a social
media and publicity campaign in May for the OIC process.
2. Pre-medical offers from insurers are banned but given the tariff damages and no costs SCT environment
then the insurer’s reasoning for previously making such pre-med offers has dissipated in any event. The MOJ
have been clear that any injury needs to be supported by a medical report.
3. Originally it was envisaged that there would be an Alternative Dispute Resolution (ADR) process built into
the OIC Portal but this has been disregarded.
4. Upon commencement of the claim the Portal system will undertake an automatic Motor Insurance Database
(MID) search and send the Defendant’s insurer’s details to the Claimant. The MIB has confirmed that if the
insurer disputes that they are in fact the correct insurer to deal with the claim then the case will proceed as
though it is a liability denial in order that the Claimant is not disadvantaged until the insurance situation is
resolved. There are also two other exceptions identified:
• A “double hit” – if two motor insurers are identified then the MIB Portal Support Centre will step in and
address with the compensators who is to deal with the claim and assign it accordingly.
• No MID match – if no motor insurer is identified then the Portal Support Centre will again intervene and
this is a potential route in to the MIB on the basis that the Defendant is unlikely to be insured.
5. Instead, where liability is denied then the claim will drop out of the OIC Portal process and Claimants must
then issue proceedings without a medical report in order to pursue their case on liability to a Small Claims
Track Hearing in the County Court before a District Judge. Salford County Court/County Money Claims
Centre (CCMCC) will be the Court processing small claims arising from the Portal.
6. If the Claimant is unsuccessful then that is the end of the case. However, if the Claimant succeeds in full or
partially (i.e. a degree of contributory negligence) then the case will be transferred back into the Portal for a
medical report to be obtained and thus a quantum valuation.
7. Importantly the insurer now has 30 working days (not 15 working days as under the current MOJ Portal) to
make a liability decision.
8. Vitally if no decision is made within the 30-day timescale then there is a deemed presumption that the
insurer has admitted liability.
9. Liability admissions are binding on the insurer for a Claimant’s personal injury claim and other Protocol
damages but importantly not in relation to Non-Protocol Vehicle Costs e.g. repairs not paid for by the
Claimant or credit hire claims. Credit hire claims can therefore still be disputed outside of the OIC Portal.
10. Another major issue for insurers is that where liability is being denied in full or there are allegations of
contributory negligence, then the Defendant driver’s version of events need to be uploaded to the Portal
supported by a Statement of Truth (Annex A attached). Therefore, a motor insurer’s early engagement with
their insured driver is vital to obtain the full version of events regarding the RTA and will include their
written version of events/statement/sketch plan/photographs/CA telemetry etc. Thereafter the insured
driver needs to be advised of the Statement of Truth when signing the Defendant’s version of events.
Annex A is contained within the PAP but it will be important for new precedent documents to be developed
by insurers to assist with the process of obtaining signed version of events from their insured drivers such
that they can be electronically transferred between the policyholder/customer/driver and the insurer.
11. If, for “good reason”, the insurer has not been able to obtain a version of events with a signed Statement of
Truth from the policyholder, then a witness summary can be served that has been prepared by the insurer.
There is no definition of what constitutes “good reason” but it may be holidays, sickness, bereavement
3issues etc. In this scenario then the insurer can serve the witness summary which must include:
• Evidence known from the Defendant driver and;
• If evidence is not known, matters which the insurer wishes to question the Defendant driver upon and;
• The reasons why a signed version of events from the driver has been unable to be obtained.
In such circumstances the insurer must sign the Statement of Truth in response themselves within the 30-
day liability response period. Claims Handlers must therefore be trained and be prepared to sign
Statements of Truth in such circumstances. The Statement of Truth is a reasonable belief in the contents of
the document but clearly there are serious ramifications including Contempt of Court if any document is
falsified and therefore training staff and having precedent documents drafted would be imperative in order
to take advantage of the new process.
12. Even where an insurer uses a witness summary, then the driver’s version of events supported by a signed
Statement of Truth should always be obtained at some stage and uploaded to the Portal “as soon as
possible”. This should be undertaken by the time the insurer responds to any Court Pack issued failing
which the Defendant’s evidence will not be included in the Court Pack and the claim is likely to fail before a
District Judge due to lack of evidence.
13. Where there is an admission of liability in full then the claim will remain in the OIC Portal and medical
evidence will be obtained via Medco.
14. If contributory negligence is alleged by the Defendant, the parties will have the opportunity to trade up to
three offers in respect of the liability apportionment. This will work in a similar way to the current Stage 2
Negotiation process under the current PAP for low value personal injury claims in RTAs.
15. Where the insurer contends that the Claimant contributed to their injuries by not wearing a seatbelt then
this argument must be raised in any response. The medical expert will also be asked to comment in the
report on the effect (if any) of any failure to wear a seat belt and the Claimant’s injuries. The PAP also
states that the insurer must not state the percentage by which they contend that the Claimant contributed
to their injuries by their failure to wear the seatbelt until after the medical report has been disclosed.
16. “Vehicle Costs” are divided into “Protocol Vehicle Costs” and “Non-Protocol Vehicle Costs ”. In reality the
difference is whether or not the Claimant themselves has paid for and is responsible for such costs or if this
is for the insurer or a credit hire organisation (CHO). The actions within the PAP are as follows:
Protocol Vehicle Costs Non-Protocol Vehicle Costs
Vehicle costs which at the time the claim is Credit hire – as the Claimant will not have paid
made have been paid by the Claimant for this.
personally or by an individual on behalf of the
Claimant.
Insurance excess. Repairs if the Claimant is not paying personally
– likely by their insurer.
Pre-accident value of the vehicle – if claimed by Recovery charges if the Claimant is not paying
the Claimant personally and not payable by the personally.
Claimant to the Claimant’s insurers.
Repair costs which have either been paid or Storage charges if the Claimant is not paying
paid personally by a Claimant or the Claimant personally.
intends to pay personally.
4Claims for Non-Protocol Vehicle Costs are not included within the PAP, but it is stated that they are to be “dealt
with under industry agreements between relevant organisations and insurers”. Where there are Non-Protocol
Vehicle Costs, the Claimant must state when entering the claim on the OIC Portal that these are being dealt
with by another organisation or business e.g. credit hire company. Non- Protocol Vehicle Costs claim document
and insurer’s response document are attached (Annex C and D).
Medical Evidence
In respect of whiplash claims in the OIC Portal, a medical report is always required in the OIC Portal before any
settlement offer can be made or accepted. However, the PAP specifically states that there is no such
requirement for a non-whiplash part of any claim. The PAP is slightly contradictory as it states that offers
without a medical report in non-whiplash injury cases can only take place outside the Portal (7.1 (4)), but the
PAP also goes on to state that offers without a medical report for non-whiplash injuries can be made on the
Portal by using the messaging facility (15.3 (3)). Therefore, although the Portal will not be able to provide any
onscreen prompts or other facilities to handle such offers, clearly an offer for a non-whiplash injury can be made
via the Portal messaging service directly to the Claimant and is thus capable of being accepted to conclude a
case.
Other issues of note in respect of medical evidence via the Portal include:
1. All medical evidence is obtained via Medco.
2. The medical evidence is always a fixed cost report (£180 plus VAT) and paid for by the Defendant insurer.
3. When a Claimant is unrepresented, the instructions for the medical expert for the first medical report are
generated by the Portal once the Claimant asks for the medical report. Instructions from the Portal will
automatically include the following information:
• Claimant’s descriptions of their injuries entered on the Portal.
• Whether a Claimant considers that the whiplash injuries are “exceptionally severe” or that “any exceptional
circumstances have had an impact on their pain, suffering and loss of amenity”.
• Tell the medical expert if the insurer denies causation and disputes that the accident caused any injury to
the Claimant and why.
• If the insurer maintains that the Claimant contributed to the injuries by not wearing a seatbelt.
• Includes the Defendant’s version of events where the insurer has admitted liability but provided a different
account of the accident e.g. Low Velocity Impact (LVI).
• Provide any information regarding minor psychological injuries.
• Where there are differing version of events then the expert is asked to comment on the impact and
diagnosis/prognosis (including whether the accident caused any injury) depending upon whether the
Claimant’s or Defendant’s account is found to be true.
• Under the PAP the medical expert is not expected to review medical records.
4. Once the medical report has been obtained through Medco, the medical expert will upload the report onto
the Portal and complete the following details on the Portal:
• Prognosis for the Claimant’s injuries – this will be a specific timescale for resolution in accordance with the
tariff damages set out above.
• Any recommendation to obtain a further report.
Where the Claimant is represented then those representing must upload the medical report onto the Portal.
For unrepresented Claimants the insurer will always pay for the fixed cost medical report.
55. A further medical report will be justified where it is recommended in the first expert’s report, continuing to
receive treatment or the Claimant has not recovered as expected in the original prognosis. For unrepresented
Claimants the insurer will also be responsible for the cost of the further report. This means that the insurer
could be faced with paying for 2 reports without having had sight of the initial report, if the Claimant has been
receiving treatment or has elected to wait out the prognosis period. See Annex B (attached) for standard
instructions.
6. Importantly however, any further report from an expert in the medical disciplines below must also be a
fixed cost medical report:
• Consultant Orthopaedic Surgeon: £420
• Consultant in A&E: £360
• GP: £180
• Physiotherapist: £180
Although the obtaining of medical records is encouraged the fees are limited to £30 plus the direct cost
from the holder of the records and limited to £80 in total for each set of records required. A report on
medical records is limited to £50 (CPR PD27 (b)).
The Claimant having received a copy of the medical report can then elect when to disclose that to the insurer
as per the current process, but if a further report is sought (e.g. as recommended in first report/Claimant
receiving treatment etc.) there is no requirement for the Claimant to disclose the first report to the insurer
before the subsequent report is obtained. This might lead to a position with an unrepresented Claimant where
the insurer arranges and pays for a further report without possibly having even seen the first report.
Interim Payments
Unlike under the current PAP for low value personal injury claims in RTAs, there is no provision for an interim
payment of £1,000 in respect of PSLA. A Claimant can however, request an interim payment in respect of
special damages.
Valuations/Offers to Settle
The following are requirements under the PAP regarding settling the low value RTA:
1. Once the Claimant has obtained the Medco medical report and is ready to settle (including obtaining any
second report), then they must confirm on the Portal that the medical report is ready to be sent to the
insurer.
2. The Claimant must also list other Protocol damages that have been included in the online “List of Losses”
and this must be verified with a Statement of Truth. The Claimant must also include any fees in the List of
Losses e.g. for a second medical report.
3. If a Claimant is not ready to settle the claim having received the medical evidence, they will indicate via the
Portal that they wish to wait before considering settlement. At this point the Claimant is encouraged to
authorise the release of the medical report to the insurer via the Portal but is not obliged to do so.
4. If the Claimant requests a further medical report, then they may also choose to release the first report to
the insurer via the Portal, but this does not signify that the Claimant is ready to settle the claim.
5. Although medical records are considered unnecessary within this SCT process, if they are reviewed then
they must be uploaded to the Portal together with any other supporting evidence e.g. photographs of
injuries.
6. There is a time limit on the insurer of 20 days to make an offer once the Claimant has provided all the
information on the Portal.
67. The information required to be received by the insurer from the Claimant includes:
• Medical report
• Any other medical evidence that the Claimant wishes to rely upon
• List of Losses – details of all Protocol damages and fees
All this information must be sent to the insurer by the Claimant via uploading through the Portal itself.
8. If causation is denied, then the insurer must notify the Claimant through the Portal within 20 days of receiving
the Court Pack (including medical evidence) and give reasons for the causation denial e.g. LVI claim.
9. Once the insurer has received the Claimant’s quantum evidence then a single offer is required for all aspects
of the claim. However, the Portal does require a breakdown of:
• Fixed tariff amount.
• Whiplash damages tariff amount.
• Damages offer for any non-whiplash injuries.
• Offer for each item of other Protocol damages – including if the item is accepted and if not an explanation
for the dispute. The insurer’s offer must also be supported by a Statement of Truth.
• A claim has not settled, and items are disputed then these will be included in the Court Valuation Form
created on the Portal and will form part of the insurer’s formal Counter Schedule in the event that Court
proceedings are issued.
10. As tariff damages are fixed by law then they are non-negotiable, and the offer is selected from a dropdown
menu. Damages for non-whiplash injuries are not fixed. The MIB have stated that the MOJ will provide
further guidance on non-whiplash injuries but this is likely to be under the current JCG (Judicial College
Guidelines).
11. On receipt of an offer the Claimant may either:
A) Accept the offer.
B) Reject the offer.
C) Make a counteroffer.
D) Put the offer “on hold” while they await developments in their claim – this includes waiting to see if non
-resolve injuries settle or improve as predicted in the medical report. The risk to the insurer in such a
scenario is that it becomes a potential new world “Portal Incubation” issue as Claimants and their
representatives delay claims in order that they are taken out of the SCT and damages are built up as a
result of “on hold” delays.
A party can make up to three offers or counter offers in total through the Portal and all offers must be
supported by a Statement of Truth.
It is expected that each party should respond to offers and counter offers from the other within a maximum
of 10 days and neither the Claimant nor the insurer may withdraw an offer until 10 days have passed after
which an offer can be withdrawn such that there is no offer still on the Portal. If the insurer withdraws their
offer after the Claimant has made their third and final offer, the insurer may not make a new offer on the
Portal and therefore the claim will either be withdrawn, or proceedings issued (8.18 and 8.19).
7Acceptance and final payment
1. If the Claimant accepts an offer, then the insurer must pay the agreed sum within 10 days of acceptance.
2. If there is no Compensation Recovery Unit (CRU) certificate, then the insurer must apply for a certificate as
soon as possible and notify the Claimant that they have done so and pay the sum agreed no more than 30
days from the date of acceptance on the Portal.
4. The Insurer then confirms via the Portal that the claim has settled.
5. The PAP also makes clear that litigation must be seen as a “last resort”.
6. The method of payment of agreed damages is also to be agreed on the Portal between the Claimant and the
insurer i.e. via cheque or bank transfer etc.
7. Importantly settlement of the claim within the Portal for the injury and other Protocol damages does not
prevent the Claimant from pursuing any claim for Non-Protocol Vehicle Costs arising from the same accident
outside of the Protocol/Portal. Therefore, any settlement for example is not binding upon a CHO in respect
of credit hire.
Fraud
The insurer can allege fraud/fundamental dishonesty at any stage and the claim therefore exits the Portal. In
such circumstances the matter should fall into the existing MOJ personal injury Pre-Action Protocol.
In respect of LVI then the insurer can indicate within the 30 day period that they are admitting liability but
denying causation and the claim will remain in the OIC Portal. In these circumstances the policyholder’s version
of events provide a full explanation as to the causation and LVI denial. The medical expert will also be asked to
comment on this as above.
If causation is raised once the Claimant has disclosed the medical report then the insurer can decide whether to
make any offers or not. If causation remains fully in dispute then the claim will drop out of the Portal and the
Claimant then has the choice of litigating or withdrawing the claim. The case on issue likely to be allocated to
the Fast Track and fixed recoverable costs will apply. CPR Part 45 has been specifically amended to provide for
fixed costs in cases that drop
Non-Protocol Vehicle Costs
As stated above the PAP distinguishes between Portal and Non-Portal Vehicle Costs. The Non-Protocol Vehicle
Costs not dealt with via the OIC Portal include:
• Cost of repairs or write off value of the vehicle
• Recovery costs
• Storage costs
• Credit hire vehicle – temporary vehicle
Other issues of note are:
1. The PAP makes it clear that claims for Non-Protocol Vehicle Costs are handled outside the Portal (11.1 (1)).
Annex C and D (attached) are forms for “Non-Protocol Vehicle Costs” that comprise of a Claim Document
and Response Document.
2. In respect of credit hire then the forms require the following information:
• Credit hire company’s name.
• Hire charge invoices – including rental agreement/hire agreement.
8• Hire period – start and end date.
• Why the Claimant needs to hire a replacement vehicle.
• Daily hire rates.
• Why the Claimant considers that the rate of hire is reasonable.
• Why the Claimant considers that the period of hire is reasonable.
• For credit hire why, the Claimant was unable to afford to pay for the hire themselves (impecuniosity) and
provide reasons for their inability to meet the cost of the hire themselves and thus incur credit hire
charges. The Claimant is advised that he will be directed by the Court to disclose financial or other
documents supporting this response on impecuniosity after proceedings have been issued.
• A Statement of Truth is required on both Non-Protocol Vehicle Cost forms.
• The insurer’s Response Document also sets out why losses are disputed and allows documents to be
attached in support of the dispute.
3. Although the Portal is not there to deal with Non-Protocol Vehicle Costs there is a requirement that the
Claimant must set out on the Portal whether such costs are to be made. The PAP states that this is intended
to help the Claimant to make the necessary enquiries and obtain the information needed for the claim
(11.5). For unrepresented Claimants assistance can be obtained from the MIB Portal Support Centre.
4. The Claimant must upload the signed Non-Protocol Vehicle Costs claim document (NVC) onto the Portal
together with supporting evidence and a Statement of Truth. The uploaded NVC claim document will then
be sent to the insurer via the Portal.
5. Therefore, although the NVC costs are not settled via the Portal all the necessary information is uploaded to
the Portal to allow the insurer to consider such costs.
6. The insurer is then required within 15 days on receipt of the NVC claim document to complete the response
document (Annex D) and upload this to the Portal together with supporting evidence.
7. Thereafter, the Portal will create a Court Valuation Form that can be used in proceedings. Failure by the
insurer to upload the NVC Response Pack may mean the Court will not consider the insured’s arguments
about the claim for Non-Protocol Vehicle Costs.
Court Proceedings
The PAP permits the Claimant to start Court proceedings where there is a liability or quantum dispute between
the parties. A Court Pack will be pre-populated and downloaded from the information/data already uploaded
within the OIC Portal.
The insurer has 5 working days to review the contents of the Court Pack on the Portal. The reason for the
Claimant starting litigation will be shown when the insurer is reviewing the Court Pack list. The insurer may add
documents to the Court List but may not remove any documents selected by the Claimant. If the insurer has not
responded in 5 working days, then the Court Pack list is treated as agreed and the Claimant may start
proceedings. Insurers can nominate a panel law firm to accept service and these details should be provided
within 5 working days. If there is no address for the Defendant on the Portal, the insurer will be asked whether
they wish to nominate a legal representative or provide an address for the Defendant failing which the motor
insurer themselves will only be named in the Court proceedings as Defendant.
Thereafter the Portal will create the Court form and list the documents for the Court and the Claimant must
then sign with a Statement of Truth:
• Court form
• List of Documents and the documents to be included in the Court Pack
9We have set out at Annex E (attached) the Court Pack contents and tables for:
• Table A – liability dispute
• Table B – valuation dispute including NVC or uplift
• Table C – valuation dispute no claim for NVC or uplift
• Table D – limitation
• Table E – interim payment request
• Table F – dispute over fees
• Table G – failure to pay agreed sums.
If Court proceedings are raised then depending on the nature of the claim being brought there are different
processes:
• On a liability dispute there will be an Oral Hearing attended by both parties or, their representatives.
• For a quantum Judgment without a claim for Non-Protocol Vehicle damages or an uplift, the Claimant may
request a determination without a Hearing, which the Court may direct if the Defendant does not disagree.
• Where Non-Protocol Vehicle damages or an uplift are claimed, there will be an Oral Hearing attended by
both parties – an improvement on the current MOJ Stage 3 process where credit hire is involved where the
Defendant is not able to require an Oral Hearing this will allow the Defendant insurer to deal with oral
evidence in respect of issues including impecuniosity. The MIB has been asked who will pay the Court issue
fee but the answer has not been given although it is likely that the usual rules apply, and the fees must be
paid by the Claimant themselves. Again, will this deter Claimants from litigating where liability has been
denied fully in the Portal?
One of the areas that may be challenging in respect of litigation where liability is disputed relates to delays in
the Court system. Small Claims Track Hearings are taking a significant time to be listed (often over 12 months)
and if liability is then found in the Claimant’s favour and medical evidence subsequently obtained then there
are a multitude of risks. These include:
• Extended injury/prognosis period.
• Missed opportunity for treatment/rehab.
• Potentially falling outside the SCT and if the medical report is not obtained until near the 2-year anniversary
and the Claimant alleges ongoing problems.
Increased operational costs as claims lifecycles are significantly extended.
Conclusions
The Whiplash Reforms are a welcome development for the insurance industry and have been eagerly awaited
for the past few years. The clock is now ticking in order that insurers have prepared fully for the start date on
31 May 2021.
The detail of the PAP needs to be fully embedded into insurer’s processes so the various deadlines within the
new OIC Portal are not missed. We are preparing a process flowchart setting out the timescales and different
routes that could be taken as part of the new Portal process, and the following timescales should be noted:
• 30 working days to respond on liability failing which an insurer is deemed to admit liability.
• 20 working days to make an offer following receipt of the Claimant’s medical report and evidence.
• 10 working days to pay agreed damages (or 30 days if no CRU certificate).
10• 5 working days to review the Court Pack on the Portal – to settle pre-litigation or nominate panel lawyers.
• 15 working days to respond on receipt of the NVC Document.
The new PAP also makes it clear that Statements of Truth are required for both Claimants and Defendants.
This includes the new Statement of Truth wording whereby the person signing understands that Contempt of
Court proceedings may be brought if a false statement is made (see Annex A ). The training on the signing of
Statements of Truth for insured drivers and Claims Handlers will be important.
Other areas of note and interest that require further review include:
1. How non-whiplash damages will be assessed.
2. How the interface will work between Non-Protocol Vehicle Costs to be efficiently dealt with as part of the
overall claim as Annex C and D must also be uploaded to the Portal.
3. An admission of liability is binding within the Portal for whiplash and Protocol vehicle costs only but not for
other Non-Protocol Vehicle Costs e.g. credit hire.
4. It remains to be seen how often we see claims requesting a 20% uplift due to “exceptional circumstances”
as a result of the severity of the whiplash injury. We view this as being a difficult area for Claimants to
successfully pursue. However, we believe that the slight increase in tariff damages for minor psychological
injuries are likely to be widely claimed e.g. travel anxiety following an RTA. The increase in travel anxiety
being claimed within medical reports over recent years has seen a number of insurers challenge this
element of ‘pain, suffering and loss of amenity’ (PSLA) by questioning either that it is so trivial and/or that
the GP is not qualified to comment upon psychological conditions. These arguments are effectively
removed from insurers under the new tariff.
5. Delays in obtaining a medical report via Medco could also lead to a longer prognosis towards the 2-year
period.
6. Claimant’s may also seek to claim non-whiplash type injuries (“wrist lash”) in order to inflate damages.
7. Credit rehabilitation is not within the PAP/Portal and this could lead to CMCs and medical agencies
incurring credit rehab costs. Any rehabilitation must be justified within the Claimant’s medical report
obtained via Medco. For unrepresented Claimants they will be asked within the Portal whether they have
been advised to seek further medical treatment e.g. physiotherapy and this information will be shared with
the insurer who can then decide whether to offer rehabilitation.
8. Where liability is disputed in full then the Claimant’s only option is to issue proceedings without a medical
report for a liability determination by the Court. For unrepresented Claimants, it remains to be seen how
much appetite there will be for such litigation and this could lead to an increase in the use of CMCs.
9. Although the fee for RTA injury claims has been increased to £5,000 and the overall SCT is still £10,000
there is a risk that other costs will be layered and there will be a focus on credit hire claims.
10. The SCT for EL/PL claims remains at £1,000. This Casualty work will therefore be far more attractive to
CMCs and Claimant Solicitors who previously concentrated solely in the Motor arena which could lead to a
shift in “farming” activity around such claims.
11. There are also opportunities for insurers to deal directly with the Claimant via the Portal. Claimants are
potential future customers for personal lines motor insurers and dealing efficiently via the Portal with the
unrepresented Claimant’s claim and assisting with any navigation through the Portal where fault attaches
may also assist to keep CMCs/CHOs from the claim (if the Claimant has not already been captured).
Overall the Reforms must be welcomed by the insurance industry but there are challenges and opportunities
ahead and efficient processes are required to ensure that we keep ahead of the game and take advantage of
the Reforms.
11Attachments
Annex A: Defendant’s Version of Events
Annex B: Standard instructions for use by compensator requesting further report on
claimant’s behalf
Annex C: Non-Protocol Vehicle Costs/Claim Document
Annex D: Non-Protocol Vehicle Costs/Response Document
Annex E: Court Pack Contents/FormsANNEX A
Defendant’s Version of Events
This document must be signed by the defendant driver:
My version of events is:
Version of events
The version of events stated in this form must be the same as that provided in the
compensator’s response where it has been confirmed that the compensator has the
defendant’s version of events.
Statement of Truth:
I believe that the facts stated in this Defendant’s Version of Events are true
I understand that proceedings for contempt of court may be brought against me if I make, or cause
to be made, a false statement in a document verified by a statement of truth without an honest
belief in its truth.
Signed ..............................................................................
Name ...........................................................................
Dated......................................................ANNEX B
Standard instructions for use by compensator requesting further report on claimant’s behalf
We send these instructions on behalf of the claimant [NAME and ADDRESS], who has consented to this
request. Please note that we are not acting as the claimant’s representative in this matter and the
claimant is unrepresented and brings this claim via the RTA Small Claims Protocol.
You should contact the claimant direct to arrange an appointment. Your report must be sent direct to
the claimant for consideration. No copy should be sent to us.
We can confirm that we will meet your reasonable fees for preparation of the report.
The claimant’s injuries follow a road traffic accident on [date]. [Liability/ Fault] has been [admitted],
[admitted in part].
Reason for instruction:
The claimant has advised that they need a further report from a [type of expert] because:
[delete as appropriate]
• it is recommended in the first expert's report; or
• the first medical report recommends that further time is required before a prognosis of the
claimant’s injuries can be determined; or
• the claimant is receiving continuing treatment; or
• the claimant has not recovered as expected in the original prognosis.
Previous medical report
[Delete as appropriate]
The claimant has provided a copy of the first medical report which is attached to these instructions:
or
The claimant has not provided a copy of the first medical report to us but will bring a copy of it to
their appointment.
Further information [if applicable]
The claimant has provided further information about their request for a further report as follows:
details
It is not expected that you will need to review any medical records. If you consider that they are
required before you can express a final opinion please contact the claimant to arrange obtaining the
relevant records.
InstructionPlease would you arrange to examine the claimant and provide a report on their injuries arising from the accident. You should make clear when expressing a prognosis for recovery as to when the period of recovery starts from and ends respectively.
ANNEX C
Non-Protocol Vehicle Costs
Claim Document
Guidance:
1. This document should be completed and signed by you, the claimant, once you have completed
all of the relevant screens on the portal and obtained all of the relevant supporting evidence
from the organisations handling these losses.
2. If you do not know the answer to any of the questions you should contact the company
that provided the relevant service.
3. Once this document is completed and signed it must be uploaded to the portal. The
compensator will then have 15 days to upload the response document.
I have the following Non-Protocol Vehicle Costs to be added to my claim (you must complete each
one that applies to you):
A. Costs of Repairs or Write off value of the vehicle
• The company which handled this loss on my behalf is (e.g. your insurer / another company etc):
Company name:
• I have attached the following documents in support of my claim for these losses (e.g.
Engineers report, repair Invoice or estimate, photographs of the damage)
Documents:
1. ...
2. ...
3. ...
4. ...
B. Recovery Costs
• The company which handled this loss on my behalf is: (e.g. your insurer / another company
etc):
Company name:I have attached the following documents in support of my claim for these losses (e.g. Recovery invoice,
engineers report, repair Invoice):
Documents:
1. ...
2. ...
3. ...
C. Storage costs
• The company which handled this loss on my behalf is (e.g. your insurer / another company etc):
Company name:
• I have attached the following documents in support of my claim for these losses (e.g. Storage
invoice, engineers report, repair Invoice)
Documents:
1. ...
2. ...
3. ...
4. ...
D. Temporary vehicle
• The company which arranged the hire of the temporary vehicle on my behalf is (e.g. your insurer /
another company etc)
Company name:
• Hire charge invoice(s): I have attached the following documents in support of my claim (e.g. rental
agreement / hire agreement)
Documents:
1. ...
2. ...
0.
• Hire period: the period(s) of hire I am claiming for is/are:
Hire start date:
Hire end date:• My need to hire a replacement vehicle: (you must state all facts relied up to explain
why you needed to hire a replacement vehicle for the duration of the hire period.)
I needed the vehicle because:
• The daily rate(s) of hire I am claiming is/are:
Daily hire rate as shown on rental agreement: £
• The rate of hire is reasonable for the following reasons (you must state all facts relied up by
you to explain why the rate of hire was reasonable):
Reasons:
• The period of hire is reasonable for the following reasons (you must state all facts relied up by
you to explain why the period of hire was reasonable):
Reasons:
• My claim for hire is a claim for “credit hire”. I was unable to afford to pay for the hire myself
(this is known as “impecuniosity”) for the following reasons: (you must state all facts relied up
by you to explain why you were not able to afford to pay for the hire of the replacement
vehicle.)
I was unable to meet the cost of the hire because:
• I understand that I will be directed by the Court to disclose financial and other documents
supporting my response on impecuniosity after proceedings have been issued.Statement of Truth: I believe/The Claimant believes that the facts stated in this Non-Protocol Vehicle Costs Claim Document are true I/The Claimant understand(s) that proceedings for contempt of court may be brought against me/them if I/they make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Signed ............................................................... Name.................................................................................. . Dated ................................................................. If signing on behalf of a firm or company give position or office held [text box] [Date field]
ANNEX D
Non-Protocol Vehicle Costs
Response Document
Guidance: this document must be completed by the compensator and uploaded onto the portal within
15 days of the claimant uploading a Non-Protocol Vehicle Costs Claim Document.
The following losses are disputed (complete each relevant section)
Costs of Repairs / Write off value of the vehicle
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
1. ...
2. ...
3. ...
Recovery Costs
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
1. ...
2. ...
3. ...
0.Storage Costs
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
1. ...
2. ...
3. ...
Temporary Vehicle
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
1. ...
2. ...
3. ...
The court is requested to make the following modified directions in respect of the claim for Non-
Protocol Vehicle Costs if not the standard directions in Appendix B to PD 27:
Alternate / additional directions required:
1. ...
2. ...
3. ...
1.
2.Statement of Truth The compensator believes that the facts stated in this Non-Protocol Vehicle Costs Response Document are true. I understand that proceedings for contempt of court may be brought against me if I make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I am duly authorised to sign on behalf of the compensator. Signature ...................................................... Name ................................................................................. Position ................................................. Date ......................................................
Annex E – Court Pack Contents/Forms
Table A (liability dispute, liability denied in full)
Documents and Evidence Notes
The Small Claim Notification Form including
the claimant’s version of events
Any witness statements uploaded to the Portal
Any police report uploaded to the Portal
Any photographs uploaded to the Portal
Any sketch plans uploaded to the Portal
Any dashcam, or video clips uploaded to The claimant must tick the appropriate box
the Portal on the court form to indicate that such
footage will be made available to the court at
the hearing, but need not be sent to the court
with the Court Pack
Any other documents or data uploaded to
the Portal in support of the claimant’s claim
The Compensator’s Response including summary of facts or witness summary
if applicable
The defendant’s version of events
supported by a statement of truth
Any other documents uploaded to the Portal
by the compensator, including witness
statements, photos, sketch plan, dashcam or
Table B (value dispute, liability disputed, may include NVC or uplift)
Documents and evidence Notes
B (1) (value dispute, general)
The Small Claim Notification Form
The Compensator’s Response
The Court Valuation Form
The claimant’s List of Losses
All documents in support of the List of
Losses uploaded to the Portal
The fixed cost medical report uploaded to the
PortalTable C (value dispute, no liability dispute, no claim for NVC or uplift)
Documents and evidence Notes
The Small Claim Notification Form
The Compensator’s Response including summary of facts or witness summary
if applicable
The defendant’s version of events (if provided)
supported by a statement of truth
The Court Valuation Form
The claimant’s List of Losses
All documents in support of the List of
Losses uploaded to the Portal
Any fixed cost medical report uploaded to the
Portal
Any other medical report uploaded to the Portal
Any medical records or photographs of
the injury uploaded to the Portal
Details of any challenge to a medical report and
the response
Invoices for any medical report and for any
other disbursement, which the
compensator has not already paid for
Record of Offer and Acceptance
Interim Payment
DO NOT include details of any offers made by
the compensator or the claimant that have not
been accepted
Table D (limitation)
Documents and Evidence Notes
The Small Claim Notification Form The SCNFTable E (interim payment request)
Documents and Evidence Notes
The Small Claim Notification Form
The Compensator’s Response
The date stamped Interim Request Form
Details of the items of other Protocol damages
claimed to date
All documents uploaded to the Portal in support
of the other Protocol damages
Medical report if relevant The medical report would only be relevant where
it demonstrates that treatment has been
recommended and/or sets out the cost and those
costs form part of the interim payment request.
Table F (dispute over fees)
Documents and Evidence Notes
The Small Claim Notification Form
The Compensator’s Response
The Court Valuation Form
The claimant’s List of Losses
All documents in support of the List of
Losses uploaded to the Portal
Any fixed cost medical report uploaded to
the Portal
Any other medical report uploaded to the Portal
Any medical records or photographs of
the injury uploaded to the Portal
Invoices for any medical report and for any
other disbursement, which the compensator
has not already paid for
The compensator’s reasons for not paying any
item of feesTable G (failure to pay agreed sums)
Documents and Evidence Notes
G (2) failure to pay agreed interim
The Small Claim Notification Form
Date stamped Record of Offer and Acceptance
Interim Payment
G (1) failure to pay agreed settlement
The Small Claim Notification Form
Date stamped Record of Offer and Acceptance.Whilst we take care to ensure that the material in this Review is correct, it is made available for information only, and no representation is given as to
its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Review do not give specific legal advice, should not be relied
on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may
arise from reliance on information or materials published in this Review..
Get in touch
If you would like to know more about this article, please speak to your contact at Plexus Law:
Anthony Baker, Partner
T: 0113 4681 702 | M: 07811 545 321 | E: anthony.baker@plexuslaw.co.uk
Joseph’s Well | Hanover Walk | Leeds | LS3 1AB
Leeds | London | Manchester | Evesham | Chelmsford | Taunton | Edinburgh
www.plexuslaw.co.uk
Plexus and Plexus Law are trading names of Plexus Legal LLP and Plexus North LLP. Plexus Legal LLP is a limited liability partnership with Reg. No. OC416421 and Plexus North
LLP is a limited liability partnership with Reg. No. OC423092. Plexus Legal LLP is incorporated in England & Wales with registered office address at Joseph’s Well, Hanover Walk,
Leeds, LS3 1AB. Plexus Legal LLP is authorised and regulated by the Solicitors Regulation Authority (SRA No 638317). Plexus North LLP is a Multi-national Practice regulated by
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