Civil Liability Bill [HL]

Transcription

1 Civil Liability Bill [HL] MARSHALLED LIST OF AMENDMENTS TO BE MOVED IN COMMITTEE OF THE WHOLE HOUSE Amendment No. [Amendments marked * are new or have been altered] Clause 1 1 Page 1, line 5, leave out subsection (1) and insert (1) In this Part, whiplash injury means an injury or set of injuries resulting in soft tissue damage, usually of the neck, back or shoulder, arising out of a motor accident, which presents symptoms which may include pain and aches (including pain of the jaw, neck, back, and shooting pains in the neck, shoulder or arms), headaches, stiffness, fatigue, dizziness, swelling, bruising, tenderness or muscle spasms. 2 Page 1, line 5, leave out subsections (1) and (2) and insert (1) Subject to regulations made by the Lord Chancellor under subsection (2), in this Part whiplash injury means a soft tissue injury which (a) includes a strain, flexion, or rotation injury to the neck, back or shoulder; (b) causes pain (including radiating pain), swelling, bruising, headaches, restricted movement or other associated symptoms; (c) is not an injury excluded under subsection (2). (2) Regulations made by the Lord Chancellor may amend subsection (1) by making provision to (a) amend the description of (i) the injury or set of injuries; (ii) the way in which the injury or set of injuries arises; (iii) the effects of the injury or set of injuries; (b) exclude cases involving a particular injury or set of injuries. HL Bill 90 I 57/1

2 2 Civil Liability Bill [HL] Clause 1 - continued BARONESS BERRIDGE 3* Page 1, line 5, leave out from injuries, to end of line 14 and insert that affect the vertebrae or soft tissue in the neck, back or shoulder and any consequential psychological injury. 4* Page 1, line 6, leave out, back or shoulder 5* Page 1, line 6, after specified insert by the Chief Medical Officer of the Department of Health and set out 6* Page 1, line 14, at end insert ( ) Regulations may be informed by a review from time to time of relevant changes in motor vehicle technology and driving techniques. 7* Page 2, line 10, leave out subsection (5) Clause 2 BARONESS BERRIDGE 8* Page 2, line 30, leave out two years and insert twelve months 9* Page 2, line 31, leave out sub-paragraph (ii) BARONESS BERRIDGE 10* Page 2, line 31, leave out two years and insert twelve months 11* Page 2, line 35, leave out from amount to end of line 13 on page 3 and insert determined in accordance with the 14th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases or any subsequent revision to these guidelines.

3 Civil Liability Bill [HL] 3 Clause 2 - continued BARONESS BERRIDGE 12* Page 2, line 35, leave out specified and insert recommended annually by the Civil Justice Council and set out 13* Page 2, line 35, leave out from in to end of line 18 on page 3 and insert the table of tariffs set out in Schedule 1. ( ) The Lord Chancellor may by regulations made by statutory instrument amend Schedule 1. ( ) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament. 14* Page 2, line 36, at end insert LORD BASSAM OF BRIGHTON ( ) Before making regulations under subsection (2), the Lord Chancellor must consult the Lord Chief Justice and obtain the agreement of the Judicial College to the amount to be specified in the regulations. 15 Page 2, line 37, leave out psychological 16 Page 2, line 39, leave out psychological 17 Page 2, line 40, leave out psychological 18 Page 3, line 1, leave out psychological 19 Page 3, line 7, leave out psychological 20 Page 3, line 11, leave out psychological BARONESS PRIMAROLO 21* Page 3, line 11, at end insert, subject to subsection (6A). (6A) Provision under subsection (6) must not apply unless the Lord Chancellor is satisfied of the availability of physiotherapy and psychological treatments on a timely basis.

4 4 Civil Liability Bill [HL] Clause 2 - continued 22 Page 3, line 11, at end insert ( ) In this section, minor injury and minor injuries include any minor physical injury and any minor psychological injury. 23 Page 3, line 13, at end insert LORD BERKELEY (7A) Regulations under subsection (7) may not increase amounts in relation to claims by vulnerable road users unless the increase is to reflect increases in the retail prices index or the consumer prices index. (7B) In subsection (7A), vulnerable road user means any person other than a person (a) using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or (b) being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales. 24* Page 3, line 15, leave out regulations under this section apply and insert this section applies 25* Page 3, line 17, leave out from injuries to end of line 18 26* Page 3, line 18, at the end insert ( ) Nothing in this section, or in any amendments to the Civil Procedure Rules which increase the Small Claims Track Limit, prevents a court, in a case where a person suffers a whiplash injury, making an award of costs in respect of the provision of a medical report in support of that person s claim. 27* Page 3, line 25, at end insert BARONESS BERRIDGE (10A) This section may not be brought into force until the Civil Procedure Rule Committee, having the power under section 2(1) of the Civil Procedure Act 1997 to make rules under section 1 of that Act, and after consulting in accordance with section 2(6)(a) of that Act, has reviewed the limit of the small claims track for personal injury whiplash claims and has published its decision.

5 Civil Liability Bill [HL] 5 Clause 2 - continued (10B) If, under subsection (10A), the Committee proposes to change the value of the limit for whiplash claims normally allotted to the small claims track pursuant to Rule 26.6 of the Civil Procedure Rules, the Lord Chancellor must by regulations made by statutory instrument amend the Civil Procedure Rules accordingly. 28* Page 3, line 26, leave out subsection (11) 29* Page 3, line 27, at end insert ( ) In section 6 of the Civil Procedure Act 1997 (a) in subsection (3)(d), omit second and ; (b) after subsection (3)(e) insert, and (f) recommending the amount of damages to be specified in regulations made by the Lord Chancellor under section 2(2) of the Civil Liability Act * Insert the following new Clause After Clause 2 LORD BASSAM OF BRIGHTON BARONESS PRIMAROLO Small claims limit for whiplash injuries (1) In this section, the PI small claims limit refers to the maximum value of a claim for damages for personal injuries for which, in accordance with Civil Procedure Rules, the small claims track is the normal track. (2) When making regulations under section 2(2), the Lord Chancellor must take account of the PI small claims limit. (3) If any amount specified by the Secretary of State under section 2(2) is lower than the existing PI small claims limit, Civil Procedure Rules must set a separate small claims limit for whiplash injuries as defined under this Act. (4) The Civil Procedure Rules may set a small claims limit for whiplash injuries of up to 1,500 if the Lord Chancellor is satisfied, and has certified in writing, that, on the day the rules are to come into force, the value of 1,000 on 1 April 1999 adjusted for inflation, computed by reference to RPI, would be at least 1,500. (5) Civil Procedure Rules may not increase the small claims limit for whiplash on any subsequent occasion unless the condition in subsection (6) is met. (6) The condition is that

6 6 Civil Liability Bill [HL] After Clause 2 - continued (a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of 1,000 on 1 April 1999 adjusted for inflation, computed by reference to RPI, would be at least 500 greater than on the day on which the rules effecting the previous increase were made, and (b) the rules increase the whiplash small claims limit by no more than 500. (7) In this section, RPI means the retail prices index and has the same meaning as in the Income Tax Acts (and is therefore to be construed in accordance with section 833(2) of the Income and Corporation Taxes Act 1988). Clause 3 31* Page 3, line 32, leave out the tariff amount relating to that injury and insert indicated by the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases 32* Page 3, line 36, leave out tariff amount and insert amount indicated by the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases 33* Page 3, line 38, leave out from which to, and in line 39 and insert an amount of damages is indicated by the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases 34* Page 3, line 41, leave out tariff amount and insert amount indicated by the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases 35 Page 4, line 5, after percentage insert (not exceeding 20 per cent) 36* Page 4, line 6, leave out tariff amount and insert amount indicated by the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases 37* Page 4, line 14, leave out subsection (7) 38* Leave out Clause 3 and insert the following new Clause Power of court to uplift the amount of damages payable where it is just to do so (1) A court may

7 Civil Liability Bill [HL] 7 Clause 3 - continued (a) determine that the amount of damages payable for pain, suffering and loss of amenity in respect of a whiplash injury or a minor psychological injury is an amount greater than the tariff amount relating to that injury; (b) determine that the amount of damages payable for pain, suffering and loss of amenity in respect of a whiplash injury and one or more minor psychological injuries, taken together, is an amount greater than the tariff amount relating to those injuries; (c) in a case where the court considers the combined effect of (i) an injury or injuries in respect of which a tariff amount is specified by regulations under section 2(2) or (4), and (ii) one or more other injuries, (d) determine that an amount greater than the tariff amount is to be taken into account when deciding the amount of damages payable for pain, suffering and loss of amenity in respect of the injuries mentioned in sub-paragraphs (i) and (ii); where it deems it would be just to do so in the circumstances of the case. (2) In this section tariff amount means (a) in relation to a whiplash injury, the amount specified in respect of the injury by regulations under section 2(2); (b) in relation to a whiplash injury and one or more minor psychological injuries, the amount specified in respect of the injuries by regulations under section 2(4). Clause 4 39* Page 4, line 27, after injury insert provided by an accredited medical expert selected via the MedCo Portal 40* Page 4, line 37, leave out may and insert must 41* Page 4, line 39, leave out the descriptions of persons and insert, in addition to persons registered as a medical expert on the MedCo Portal, other descriptions of persons with medical qualifications 42* Page 5, line 10, at end insert ( ) In this section, the MedCo Portal means the website operated by Medco Registration Solutions (company number ) which provides a system for the accreditation of medical experts.

8 8 Civil Liability Bill [HL] 43* Page 5, line 31, at end insert Clause 6 ( ) The Treasury must make regulations requiring the Financial Conduct Authority, where it is the relevant regulator, to prohibit a regulated person, in the course of providing any claims management services (within the meaning of section 419A of the Financial Services and Markets Act 2000), from doing, or arranging or advising the doing of, an act mentioned in section 4(2). 44* Page 5, line 31, at end insert ( ) The Treasury must keep under review the effectiveness of the regulatory provisions which prohibit cold calling for whiplash claims; and must report its findings to Parliament at least once every three years. 45* Page 5, line 34, at end insert BARONESS BERRIDGE ( ) The regulations must specify that the Financial Conduct Authority is to require insurers providing motor insurance in the United Kingdom to provide information on the savings made as a result of this Act and to report on the extent to which those savings have been passed on to consumers through a reduction in the cost of premiums within the period of one year beginning with the day on which this Act is passed and annually thereafter. 46 Page 5, line 42, at end insert ( ) provision to require the Financial Conduct Authority to require all insurers holding a licence to offer UK motor insurance to report on 30 September 2019 and 30 September 2020 what annual loss cost savings have been achieved in whiplash claims and how associated premium reductions have been made.

9 Civil Liability Bill [HL] 9 47* Insert the following new Clause After Clause 6 BARONESS BERRIDGE Civil procedure rules: cost recovery for medical reports Sections 4, 5 and 6 may not be brought into force until the the Civil Procedure Rule Committee, having the power under section 2(1) of the Civil Procedure Act 1997 to make rules under section 1 of that Act and after consulting in accordance with section 2(6)(a) of that Act, has made rules ensuring that a claimant who succeeds (whether before or after the issue of proceedings) in establishing a claim for damages in respect of a whiplash injury which is, or would if issued be, allocated to the small claims track, may recover the reasonable costs of procuring a medical report or other appropriate evidence of an injury for the purposes of section 4. 48* Insert the following new Clause Impact report BARONESS BERRIDGE Within the period of one year beginning with the day on which this Act is passed, the Secretary of State must lay a report before both Houses of Parliament on the impact of this Act on the average cost of premiums for motor insurance in the United Kingdom. 49* Insert the following new Clause Independent review of operation of Part 1 (1) The Lord Chancellor must, before the end of the initial period, appoint an independent adjudicator ( the adjudicator ) to carry out a review of the operation of this Part, and in particular to assess how far savings made by insurers arising from the operation of this Part are reflected in the premiums paid by motor insurance policy holders. (2) The initial period is the period of two years beginning with the first day on which regulations under section 2(2) are in force. (3) The adjudicator must be a person (a) who appears to the Lord Chancellor to be independent of the insurance sector; and (b) who does not appear to the Lord Chancellor to have any financial or other interests that could reasonably be regarded as affecting the person s suitability to serve as the adjudicator. (4) In appointing the adjudicator, the Lord Chancellor must have regard to the need to ensure that the adjudicator has the necessary experience to undertake the review. (5) Before appointing the adjudicator, the Lord Chancellor must consult the chair of the Justice Committee of the House of Commons.

10 10 Civil Liability Bill [HL] After Clause 6 - continued (6) The reference in subsection (5) to the Justice Committee of the House of Commons (a) if the name of that Committee is changed, is a reference to that Committee by its new name, and (b) if the functions of that Committee (or substantially corresponding functions) become functions of a different Committee of the House of Commons, is to be treated as a reference to the Committee by which the functions are exercisable; and any question arising under paragraph (a) or (b) is to be determined by the Speaker of the House of Commons. (7) The adjudicator must, within a reasonable time after the end of the initial period, and after such further periods as may be required by the Lord Chancellor, send a written report to the Lord Chancellor (a) setting out the results of the review, and (b) making such recommendations (if any) as the adjudicator considers appropriate. (8) The Lord Chancellor must (a) lay a copy of the report before each House of Parliament, and (b) publish the report in such manner as the Lord Chancellor thinks fit. (9) Any expenses reasonably incurred in the conduct of the review are to be paid by the Ministry of Justice out of money provided by Parliament. 50* Page 6, leave out lines 11 to 20 Clause 7 51* Page 7, line 18, at end insert minor psychological injury means a psychological injury diagnosed at a subclinical level;

11 Civil Liability Bill [HL] 11 52* Insert the following new Clause After Clause 7 BARONESS BERRIDGE Civil procedure rules: pre-action protocol This Part may not come into force until the Civil Procedure Rule Committee, having power under section 2(1) of the Civil Procedure Act 1997 to make rules under section 1 of that Act and after consulting in accordance with section 2(6)(a) of that Act, has made rules establishing a pre-action protocol for whiplash claims allocated to the small claims track with the objective of ensuring that the procedures for claimants pursuing such claims are simple and readily understandable for claimants who are not in receipt of legal advice and representation. 53* Insert the following new Clause Impact of this Act on motor vehicle insurance premiums (1) No more than one year after the coming into force of this Part, and annually thereafter, the Lord Chancellor must carry out a review of the extent to which motor insurers have passed on to their policy-holders the benefit of any savings made by them by reason of the operation of the provisions of this Act in meeting the costs of insurance claims in respect of whiplash injuries. (2) The Lord Chancellor must lay a report of the results of the first review under subsection (1) before Parliament within eighteen months of the coming into force of this Part. 54* Insert the following new Clause Cold-calling (1) In exercising functions under this Act, the Lord Chancellor must undertake and publish an annual assessment of the effect of cold-calling on the prevalence of whiplash claims, with particular regard to whiplash claims that are fraudulent or exaggerated. (2) If the Lord Chancellor considers that a ban on cold-calling could significantly reduce the prevalence of whiplash claims that are fraudulent or exaggerated, he or she must by regulations made by statutory instrument institute bans on such cold-calling and the commercial use of any data obtained by such coldcalling. (3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, both Houses of Parliament.

12 12 Civil Liability Bill [HL] Clause 8 55 Page 7, line 31, at end insert ( ) Rules of court under subsection (1) must draw attention to aspects of orders for periodical payments which may make them more suitable in cases where individuals have long-term injuries or are risk averse. LORD FAULKS 56 Page 7, line 34, at end insert ( ) In deciding whether it is appropriate to take a different rate of return into account, the court should consider (a) the particular nature of the loss in respect of which damages are sought; and (b) any offer by a defendant to agree a periodical payments order. 57 Page 7, line 36, at end insert or for different periods or descriptions of future pecuniary loss 58 Page 8, line 12, leave out within the 90 day period following and insert on LORD FAULKS 59 Page 8, line 12, leave out 90 and insert 10 60* Page 8, line 12, leave out 90 and insert Page 8, line 14, leave out within the 3 year period following the last review and insert if the procedure set out in sub-paragraph (3A) applies. (3A) The expert panel under paragraph 5 must advise the Lord Chancellor to undertake a review of the rate of return when it considers that the nature of return on investment has changed sufficiently to justify such a review. (3B) Where a review under this paragraph has not taken place for a period of 12 months, the expert panel must report to the Lord Chancellor as to why it considers that no review is necessary. LORD FAULKS 62 Page 8, line 15, leave out 3 and insert 5 63 Page 8, line 17, leave out, within the 90 day period

13 Civil Liability Bill [HL] 13 Clause 8 - continued 64* Page 8, line 17, leave out 90 and insert Page 8, line 19, leave out, within the 3 year period following the last review, 66 Page 8, leave out lines 22 to 24 67* Page 8, line 22, leave out 90 and insert 30 68* Page 8, line 23, leave out 90 and insert Page 8, leave out lines 25 to 28 LORD FAULKS 70 Page 8, line 25, leave out 3 and insert 5 71* Page 8, line 32, leave out from beginning to end of line 15 on page 9 and insert Determining the rate of return on the first review 2 (1) This paragraph applies when the Lord Chancellor is required by paragraph 1(2) to conduct a review of the rate of return. (2) The Lord Chancellor must review the rate of return and determine whether it should be (a) changed to a different rate, or (b) kept unchanged. (3) The Lord Chancellor must conduct that review and make that determination within the 90 day review period. (4) In conducting the review, the Lord Chancellor must consult (a) the Government Actuary, and (b) the Treasury. (5) The Government Actuary must respond to the consultation within the period of 60 days beginning with the day on which the Government Actuary s response to the consultation is requested. (6) The exercise of the power of the Lord Chancellor under this paragraph to determine whether the rate of return should be changed or kept unchanged is subject to paragraph 3.

14 14 Civil Liability Bill [HL] Clause 8 - continued (7) When deciding what response to give to the Lord Chancellor under this paragraph, the Government Actuary and the Treasury must take into account the duties imposed on the Lord Chancellor by paragraph 3. (8) During any period when the office of Government Actuary is vacant, a reference in this paragraph to the Government Actuary is to be read as a reference to the Deputy Government Actuary. (9) In this paragraph 90 day review period means the period of 90 days beginning with the day on which the Lord Chancellor decides (under paragraph 1) to be the day on which the review is to start. Determining the rate of return on later reviews 2A(1) This paragraph applies whenever the Lord Chancellor is required by paragraph 1(3) to conduct a review of the rate of return. (2) The Lord Chancellor must review the rate of return and determine whether it should be (a) changed to a different rate, or (b) kept unchanged. (3) The Lord Chancellor must conduct that review and make that determination within the 180 day review period. (4) In conducting the review, the Lord Chancellor must consult (a) the expert panel established for the review, and (b) the Treasury. (5) The expert panel must respond to the consultation within the period of 90 days beginning with the day on which their response to the consultation is requested. (6) The exercise of the power of the Lord Chancellor under this paragraph to determine whether the rate of return should be changed or kept unchanged is subject to paragraph 3. (7) When deciding what response to give to the Lord Chancellor under this paragraph, the expert panel and the Treasury must take into account the duties imposed on the Lord Chancellor by paragraph 3. (8) In this paragraph 180 day review period means the period of 180 days beginning with the day on which the Lord Chancellor decides (under paragraph 1(3)) to be the day on which the review is to start. 72 Page 8, line 40, leave out 180 and insert Page 9, line 4, leave out 90 and insert 75

15 Civil Liability Bill [HL] 15 Clause 8 - continued 74* Page 9, leave out lines 6 to 11 and insert (6) The response and any recommendation from the expert panel as part of a review under this Schedule is binding on the Lord Chancellor in respect of (a) whether the rate of return should be changed and what the different rate should be; or (b) whether the rate should be kept unchanged. 75 Page 9, line 12, leave out from paragraph to end and insert 120 day review period means the period of * Page 9, line 17, leave out from beginning to end of line 15 on page 10 77* Page 9, line 20, after determination insert, having taken into account the response of the expert panel, 78* Page 9, line 21, leave out, in the opinion of the Lord Chancellor, LORD FAULKS 79 Page 9, line 38, after damages insert and the cost of investment advice (if incurred) shall not be recoverable by way of damages 80 Page 9, line 41, leave out investments and insert investment grade listed debt securities 81 Page 9, line 47, at end insert ( ) For the purposes of sub-paragraph (3), very low level of risk means the level of risk associated with debt securities of the United Kingdom. 82* Page 10, leave out lines 1 and 2 83* Page 10, leave out lines 5 to 8

16 16 Civil Liability Bill [HL] Clause 8 - continued 84* Page 10, line 10, after costs insert based on recommendations of the expert panel 85* Page 10, leave out lines 12 and Page 10, line 24, leave out For each review of a rate of return, 87* Page 10, line 36, at end insert ( ) one appointed member is medically qualified and has experience of changes in medical science and their effects on life expectancy. 88* Page 10, line 36, at end insert ( ) each of the appointed members approaches the work of the expert panel as an expert with the object of recommending a rate of return that is fair to the interests of both claimants and defendants. 89 Page 10, line 36, at end insert ( ) For the purposes of this paragraph, the Lord Chancellor may adopt the membership and work of an expert panel already established by the Lord Chancellor prior to this Schedule coming into force. 90 Page 10, leave out lines 37 to Page 12, leave out lines 19 to 38 92* Insert the following new Clause After Clause 8 Impact on periodical payment orders (1) Within the period of six months after the coming into force of this Part, the Lord Chancellor must carry out a review of the impact of setting a new rate of return on the extent to which periodical payment orders are made by the courts in respect of future losses sustained by claimants in personal injury actions. (2) The Lord Chancellor must lay a report of the results of the review under subsection (1) before Parliament within eighteen months of the coming into force of this Part.

17 Civil Liability Bill [HL] 17 Clause Page 13, line 30, leave out This and insert Part 1 of this 94 Page 13, line 32, leave out This Part comes and insert Part 2 and this Part come 95* Page 13, line 35, at end insert ( ) Sections 2 and 3 may not come into force until regulations made under section 1(1) specifying a description of whiplash injury have been laid before, and approved by, a resolution of each House of Parliament. 96* Insert the following new Schedule After Clause 12 TARIFF OF AMOUNTS PAYABLE IN DAMAGES FOR WHIPLASH INJURIES Injury Duration in months Amount of damages (ID) 0<ID<=3 1,800 3<ID<=6 2,250 6<ID<=9 2,700 9<ID<=12 3,250 12<ID<=15 3,650 15<ID<=18 4,150 18<ID<=24 4,750

18 Civil Liability Bill [HL] MARSHALLED LIST OF AMENDMENTS TO BE MOVED IN COMMITTEE OF THE WHOLE HOUSE 8 May 2018 HL Bill 90 I 57/1