Civil Liability

Written evidence submitted by Irwin Mitchell LLP (CLB03)

Introduction to Irwin Mitchell

1. Irwin Mitchell is one of the largest law firms in the UK and has a depth of experience across many areas of civil justice – with the UK’s leading personal injury practice alongside work on commercial cases for businesses and small traders, employment law, public law, judicial reviews and probate.


2. Irwin Mitchell supports Opposition amendments to Part 1 of the Civil Liability Bill which will reduce the maximum whiplash injury duration from two years to one year, base whiplash tariffs on existing judicial college guidelines, and remove the power of the Lord Chancellor to set the tariffs.

3. On the discount rate, we support any measures to ensure injured people receive full compensation whilst also limiting the Lord Chancellor’s wide-ranging discretion when setting the rate.

4. In this context, we urge the Committee to:

a. Re-introduce the requirement of the Lord Chancellor to consult with an expert panel in setting the rate for the first time following the passage of the Bill (removed by the House of Lords);

b. Define claimants as being in the bracket between "very low risk" and "low risk" investors; and

c. Remove or at the very least limit the wide discretion that remains with the Lord Chancellor to set the rate based on any factor(s) and regardless of the statutory consultation that is required by the Bill.

Part 1 – w hiplash

5. Irwin Mitchell supports Opposition amendments 1, 2 and 3 removing Clauses 3, 4 and 5, which would ensure whiplash tariffs are set in conjunction with existing judicial college guidelines.

6. Irwin Mitchell supports Opposition amendment New Clause 1, which would increase the small claims limit for RTA claims in line with the Consumer Price Index only when inflation has increased the existing rate by £500. We would urge the same approach is applied for all PI claims, including non-RTA, as recommended by the Justice Select Committee.

Part 2 – d iscount rate

7. Schedule A1 subsection 4d should be amended to define personal injury claimants as being in the bracket between "very low risk" and "low risk". This would reflect the fact that injured people cannot afford to take investment risks with their compensation as they need to ensure they can meet their assessed needs over a long period of time. It is crucial that the discount rate is set according to true investment behaviour to avoid under-compensating injured people.

8. Schedule A1 subsection 2 must be removed with subsection 3 extended to apply to the first review. This will ensure the Lord Chancellor has access to independent expert guidance when setting the new rate for the first time. Expediency must not be prioritised at the expense of expertise.

9. Schedule A1 subsection 6 should be amended to ensure the discount rate is set through a fair and transparent process. The written evidence given to the Lord Chancellor by the independent expert panel should be published along with any conflicts of interest that panel members have to safeguard accountability.

10. Schedule A1 paragraphs 3 (4) and (6) should be removed to prevent the Lord Chancellor from considering macro-economic or political factors when setting a new rate. This would be contrary to the 100% compensation principle that underpins the Bill.

September 2018


Prepared 11th September 2018