Brief highlights of changes affecting Personal Injury claims in 2021

As another challenging year in these unprecedented times draws to a close, 2021’s highlights include the recognition that “even judges” are owed a duty of care by their employer. This was the position in a landmark stress at work claim brought by a judge against the MOJ, the Lord Chancellor and the Lord Chief Justice for alleged overworking, bullying and mistreatment by senior members of the judiciary. The hearing in July saw the government issue a statement admitting: –

“If negligence is found on the part of those judges against whom allegations of negligence are pleaded in the particulars of claim, or on the part of the other defendants, then the Crown will be liable to the claimant in damages.”

Other significant developments include new guideline hourly rates. For the first time in over a decade, these were reviewed, and the new and long awaited guideline hourly rates were effective from 1 October. In some cases, prior to 1 October, firms will have been justified in setting their rates over and above the then 2010 guideline hourly rates, according to the complexity of the matter, their area of specialism and location of office which have been allowed by the SCCO. While there is no doubt that costs arguments, including about the hourly rates. will continue, it is worth bearing in mind that the judge in the case of Axnoller Events Ltd v Brake & Anor [2021] EWHC 2362 (Ch) (23 August 2021) allowed the new rates for work done prior to that date. HHJ Paul Matthews held: –

“… I accept that the 2010 summary assessment guidelines are now well out of date. In a case like this, I would simply put them on one side as of little assistance. Although they are strictly speaking not yet in force, the new 2021 guidelines (which have been approved by the Master of the Rolls) have already been used in summary assessment in the High Court: see eg ECU Group plc v Deutsche Bank [2021] EWHC 2083 (Ch), [25]. I consider that I should take these guidelines into account.”

Also in October, in what seems to be a victory for claimants for the time being at least, the Supreme Court held in the case of Ho v Adelekun [2021] UKSC 43 that in cases where there was no court order for “damages and interest” as per CPR part 44, the court does not have a discretion to order a costs/costs set off in QOCS cases. Each case is, of course, fact sensitive and one needs to be mindful of this in cases where such a situation may arise as defendants will no doubt be seeking ways to ensure they do not lose out.

2021 also saw a major change with the “Whiplash reforms” coming into force under The Civil Liability Act 2018 on 31 May. This increased the small claims limit for whiplash injuries sustained in road traffic accidents from £1,000 to £5,000 for cases with an overall value of no more than £10,000. As solicitors’ legal fees are not recoverable in such cases, it means claimants injured after 31 May 2021 who do not fall within any of the exceptions under CPR rule 26.6A, are essentially left on their own to bring claims against the large insurance industry. While some savvy claimants may be able to bring these claims themselves, many will be forced to accept a low offer, and some may altogether forego bringing a claim when faced with complex issues related to causation, for instance. Others may find it difficult to start a claim in the first place. Many firms dealing with low value claims already working on low profit margins with portal costs and fixed fees, have now been squeezed out of the market. It remains to be seen whether the promised savings to motorists in reduced premiums will materialise or if once again, the only winner be the insurance industry. Access to justice seems to be limited to a privileged few.

Although virtual legal practice with meetings, conferences and hearings via Zoom and Teams has become the norm, 2022 will no doubt bring its own fresh challenges. However, I remain optimistic that it will also be a year when other significant and positive developments occur.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*