Minor Claims, the Whiplash Tariff and Court Procedure tested

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On 31 May 2021, the UK government implemented new regulations on how Whiplash claims are valued. The new regulations restrict how much an individual can recover for whiplash injuries sustained in an accident after that date.

The Whiplash Injury Regulations 2021 (2021 Regulations) established a Whiplash Tariff (Fixed Tariff Regime) that establishes a specific level of compensation based on the period of recovery i.e prognosis period as established in the Claimant’s medical evidence.

It was clear that the OIC Portal applied only to adults involved in road traffic accidents and that claims for other “protect parties” would continue to proceed within the old MOJ portal system.

However, the new regulations fell silent on the procedure that must be completed for the settlement process in respect of minor claims. The 2021 Regulations have caused great uncertainty for personal injury claims post-May 2021. A Minor’s claim is exempt from the OIC Portal process and instead proceeds through the old MOJ portal. This process resulted in a number of unanswered questions, for example:- Did this mean that minor claims are also exempt from the new Fixed Tariff Regime? When a minor sustains a whiplash injury, are they also bound by the Fixed Tariff Regime? If the answer is yes, how does this impact the settlement process/procedure? Would Counsel’s Advice on Quantum still be required? Is the Court’s approval still required?

Oracle Solicitors tested the new regulations and the procedural impact in the case of Hamayat & Others – v – Hussain which was heard at Derby County Court on the 17 August 2022.

Hamayat & Others - v - Hussain

Factual Background

On 19^th October 2021, our four clients were involved in a road traffic accident after the Defendant collided into their vehicle when he proceeded out of a car park without giving way.

The injuries sustained as a result of the incident were minor in nature, neck and back pain, with a total recovery period of a 3-4 weeks.

The mothers claim proceeded via the OIC Portal and ultimately settled in line with the new 2021 whiplash tariff. In accordance with the new regulations. The three childrens’ (minors) claims proceeded in the old MOJ portal.

The Defendant quickly made an offer of £240 in accordance with the Fixed Tariff Regime. The Litigation Friend accepted the offer knowing it would be the Court who would determine if the Fixed Tariff Applied and if the settlement was sufficient.

In order for a minor’s claim to be settled at an infant approval hearing, an Advice on Quantum must be drafted by a Barrister advising the court on the valuation of the Claimants claim. An advice on quantum was not obtained in this case as Oracle Solicitors were of the opinion that if the Fixed Tariff Regime did apply, why would a Barrister be required to draft an opinion to inform the court what they already know and what is already clearly indicated within the tariff?

In accordance with CPR 21, Oracle Solicitors requested an Infant Approval Hearing in order for the court to consider each Claimant’s settlement. The hearing was scheduled for 22 June 2022.

Specific Issues: Application of the Fixed Tariff Regime and the affect on settlement procedure

At the Infant Approval Hearing on 22 June 2022, the judge requested an advice on quantum in order to settle the case.

Daniel McVarnock made submissions to the court noting that if the Fixed Tariff Regime applied, an advice on quantum should not be required because the settlement would be bound by the Fixed Tariff Regime.

Daniel ultimately concluded that the Fixed Tariff Regime made the process of obtaining an Advice on Quantum redundant.

During the hearing, the judge and Daniel discussed the 2021 regulations and the applicability of the Fixed Tariff Regime in minors cases.

In order to resolve any uncertainty, the judge took the correct approach and listed the matter for another hearing to test the new regulations.

Skeleton arguments were filed by Counsel for both sides in advance of the hearing. Both sides ultimately agreed that the fixed tariff regime does apply to claims involving children.

Submissions were made regarding the requirement for Counsels advice on quantum and it was agreed that an advice on quantum would only be required in cases involving mixed injuries and would not be required in cases involving whiplash injuries only.

The Judge held

Whiplash tariff does apply to whiplash injuries in all cases involving minors post May-2021
An advice on quantum would not be required in cases where minors have suffered whiplash injuries solely as the injury will be bound by the tariff.
An advice on quantum would still be required in cases involving mixed injuries.
An infant approval hearing will always be required as it is the place of the court to protect the interest of the child, to ensure they have fully recovered from the incident and to ensure they are “justly” compensated for their injury.

Comment

This order assists the legal profession by providing clarity on how to value whiplash only claims and what is required in order to settle the case. This is a welcome approach as it saves costs and time for both Claimants and Defendants.

However, this does not conclude all of the disputes concerning the 2021 regulations. There are still a number of questions that remain unanswered concerning the application. What is the correct approach to take when valuing claims involving mixed injuries? This is currently being tested in the courts in cases such as Rabot v Hassam but this only addresses the valuation of adult claims with mixed injury.