A lesson in how not to write a Pre-Action Protocol (or change the CPR more generally)

Mon, 01 Mar 2021

If you are unlucky enough to have a car crash after 31 May 2021 and suffer whiplash injuries, you will face a very different approach to the valuation of and means of obtaining your damages. The new tariff regulations – The Whiplash Injury Regulations 2021 – will reduce general damages significantly, from the potential £4,080 for a 12-month whiplash injury under the Judicial College Guidelines to a fixed £1,320 under the tariff scheme.  

However, this article is not really about the new tariff scheme; that at least is relatively simple to follow. No, the real mess is the procedural machinery that has been invented, it would seem solely to cause confusion and confound all who must encounter it.

The 102-page Pre-Action Protocol Update PDF document for the 129th CPR update has from page 14 to page 102 a ‘Schedule’. The Schedule sets out the snappily titled, new “Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“The RTA Small Claims Protocol”)” It is not to be confused with the RTA Protocol, which has the equally snappy name “Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents”. It all feels unnecessarily convoluted and is surely not written by anybody with actual experience of navigating the infamously odd RTA Protocol, making that look positively sensible by comparison.

I assume the purpose of the RTA Small Claims Protocol is that it is easy to negotiate, especially for litigants in person. I sincerely doubt that this has been achieved. I developed a headache very early on whilst reading it, even though I have both a law degree and several years as a personal injury barrister to inform what I am reading.

The accessibility is reduced by the jettisoning of perfectly sensible terms such as ‘general’ and ‘special’ damages. We now have “damages for injury” in place of general damages (I know general damages covers more than just pain, suffering and loss of amenity, but they could define general damages as PSLA for this Protocol and retain the longstanding words that have a settled meaning) and equally nausea inducing terms such as “other protocol damages” other damages – injury related”, “other damages – property”, “protocol vehicle costs” and “non-protocol vehicle costs”. This is no more understandable for litigants in person than the considered use of legalese, and I would firmly argue less so, but also requires lawyers (and judges) to grapple with needlessly clunky language that only serves to confuse rather than illuminate. It is not simple, not accessible and not user friendly.

The entirely new Protocol is in addition to swathes of amendments to existing protocols and the Civil Procedure Rules, including insertion of numerous new rules and an entirely new Practice Direction. None of these are well written either. The obsession with the cross-referencing of rules makes the CPR increasingly less useful, requiring constant moving around between different rules or even between different Parts to glean the meaning of what a particular rule is trying to set out.

So, remember it is not just the value of whiplash damages that are changing. There are wholesale procedural changes that are also being brought in. And we haven’t even got on to discussion about the likelihood of the computer software that will run the claims Portal being fit for purpose.

Written by Alexander Mellis from No5 Barristers' Chambers. 

Civil Procedure Rules: https://www.justice.gov.uk/courts/procedure-rules/civil

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