Reform of whiplash claims from 1 October 2014

Just in case there are any personal injury lawyers yearning for more upheaval and change to their working lives the latest CPR update introduces the first part of the much anticipated reform of whiplash claims.

The 75^th CPR update comes into force on Wednesday 1 October 2014.

The new rules only apply to low value protocol claims where the Claim Notification Form is submitted on or after 1 October 2014.

The changes aim to:

• control the use of medical reports
• ensure that in most cases only one medical report is obtained
• ensure the expert is independent of any medical treatment; and
• limit offers until after a fixed cost medical report has been obtained and disclosed

The changes introduce the following definitions into the RTA protocol:

Soft tissue injury claims

‘a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury’

A fixed cost medical report

‘a report in a soft tissue injury claim which is from a medical expert who, save in exceptional circumstances;

a) has not provided treatment to the claimant;

(b) is not associated with any person who has provided treatment; and

(c) does not propose or recommend that they or an associate provide treatment’

An associate

‘in respect of a medical expert, any person whose business is linked to that expert or to any intermediary who commissions either the expert's report or any proposed medical treatment and 'associated with' has the equivalent meaning’

Fixed cost medical reports

Fixed costs apply to the first and subsequent medical reports and also to the cost of obtaining medical records. Generally only one expert’s report should be required and a further medical report (whether from the same expert or one from another medical discipline) will only be justified where it has been recommended by the first expert and that report has been disclosed to the defendant.

Whether the soft tissue injury claim settles in or out of the RTA protocol the following sums (exclusive of VAT) are recoverable in respect of the cost of obtaining a fixed cost medical report:

• first report from an expert - £180
• a further report (where justified) from
  • Consultant Orthopaedic Surgeon - £420 (includes a review of medical records, where appropriate)
  • Consultant in A&E medicine - £360
  • General Practitioner - £180
  • Physiotherapist - £180

The cost of obtaining a further report from an expert not listed above is not fixed but any cost incurred must be justified.

Part 36 cost consequences

These changes relate to soft tissue injury claims which have dropped out of the RTA protocol and have either:

• settled and the costs consequences of section IIIA CPR 45 apply; or
• had judgement awarded and the costs consequences of section IIIA CPR 45 apply

In either of these circumstances if the defendant made a Part 36 or Protocol offer before receiving a fixed cost medical report then where :

• the claim settled before trial, the Part 36 costs consequences will not apply unless the offer was accepted more than 21 days after the defendant received the medical report; or
• judgment has been awarded the costs consequences will only have effect in respect of costs incurred by either party more than 21 days after the defendant received the medical report

Associated medical experts

Except in exceptional circumstances, medical experts who provide fixed cost reports for soft tissue injury claims should not:

• have provided treatment to the claimant; or
• be associated with any person who has provided treatment; and
• has not recommend that they or an associate provide treatment

For more information see Lexis®PSL. For a free trial click here.