News Category 2
A Pain in the Neck: The Negative Consequences of the Whiplash Reforms - Georgina Pressdee, Temple Garden Chambers
20/01/26. On 29 October 2025, the MoJ announced its post-implementation review of the Whiplash Reform Programme, including the increase in the small claims track (SCT) limit from £1,000 to £5,000 for road traffic accident (RTA) personal injury (PI) claims. This article outlines and comments on the Law Society’s response.
Law Society’s Response
The thrust of the Law Society’s response is that the reforms have had a negative impact on Claimants and PI practitioners without achieving their core aims. In particular, the reforms have failed to –
- Reduce insurance premiums. Contrary to figures published by HM Treasury in March 2025, figures published by the Motor Insurance Taskforce in December 2025 showed a slight increase in average annual premiums (in real terms) since early 2021.
- Increase Claimants’ ability to self-represent. Since the OIC portal was launched in 2021, 89% of Claimants have sought professional representation.
Points of Ambiguity in the Legislative Scheme
The Law Society draws attention to several points of ambiguity across the Civil Liabilities Act 2018 and Whiplash Injury Regulations 2021, namely:
- The definition of a minor psychological injury.
- What constitutes an injury connected to a non-tariff injury.
- The appropriate award for mixed (tariff and non-tariff) injuries.
- The mismatch between the scope of the SCT and the eligibility criteria for the OIC portal.
Negative Impact on Claimants
- Access to Justice
The Law Society is concerned that individuals are deterred from bringing claims by the disproportionate cost whilst unrepresented Claimants struggle with the complexity of the process and face insurer-backed representation. Since its launch, 38.8% of the unrepresented Claimants that exited the portal did so because of complex issues of fact or law. Whilst they receive similar settlement amounts to represented Claimants, this may be skewed by the greater proportion of represented Claimants exiting the portal in favour of Court: 13.5% compared with 4.5%. Equally concerning is the average settlement timeframe, which is consistently less than half for unrepresented Claimants. The overall impact on access to justice is reflected by the fall in PI claims for RTAs at a greater rate than for accidents. Whilst practitioners have anecdotally observed a reduction in unmeritorious Claims (helped by the ban on settlements without medical reports), there is real concern that meritorious Claims are disappearing.
- Fair Compensation
The Law Society suggests that compensation is better determined case by case than through fixed tariffs. Practitioners have also observed an increase in non-tariff injuries. The Law Society recommends engage with Claimants to understand the cause but posits that restrictive tariffs are a contributing factor.
Negative Impact on Practitioners
Due to the sharp decline in low-value RTA work, many firms have been forced to exit the market or diversify. Between August 2022 and July 2025 there was an 18.7% reduction in the number of PI solicitors on the roll. This reduces consumer choice and contributes to market consolidation. Firms that have persevered find their time taken up by redirecting clients to the OIC portal without any fee. The OIC portal website does not commonly appear at the top of a relevant web search nor is it referenced on relevant gov.uk webpages or hosted at a gov.uk address.
Recommendations
The Law Society makes three core recommendations to address its concerns:
- Revise the SCT limit to £1,500.
- Improve the OIC portal’s usability, visibility and legitimacy and link them with other civil justice services.
- Improve data collection and reporting of outcomes.
Comment
The Law Society raises several legitimate concerns. Resolving the ambiguities listed above would be a good first step. An apt fifth addition would be when the severity of a whiplash injury and/or its effects are “exceptional” under Regulation 3(2). However, items one through three could equally be resolved by the Courts. Indeed, item three has already been considered in Hassam & anor v Rabot & anor [2024] UKSC 11.
The Law Society stresses the negative effects of restrictive fixed tariffs. However, the tariffs do not operate in isolation; they are accompanied by equally restrictive fixed costs. It is the combination of the two that deters Claimants; that should inform any legislative response. Alternatives to altering the tariffs, such as adjusting the SCT threshold (as the Law Society suggests) or fixed costs, are worth considering. The tariffs themselves could be adjusted for inflation in each case, as with awards under the Judicial College Guidelines, rather than sporadically by the legislature.
Finally, the increase in non-tariff injuries could be addressed by greater willingness from Judges to find they are not proved without satisfactory evidence as to how they were sustained.
Image ©iStockphoto.com/PixelsEffect
A hollow victory: Harassment proven but dishonest Claimant loses all - Michael Brooks Reid, Temple Garden Chambers
20/12/25. Michael Brooks Reid discusses the recent High Court decision in Taiwo v Homelets of Bath Ltd [2025] EWHC 3173 (KB), in which the whole claim, including statutory damages for harassment, was dismissed following a finding of fundamental dishonesty.
Facts
The Claimant brought proceedings arising out of her treatment by the Defendant landlord and its agents during an attempted eviction in 2010. At a liability only trial in 2018, it was found that the Claimant had been subjected to harassment contrary to the Protection from Harassment Act 1997 and had been assaulted.
At the quantum trial, the Claimant, acting through a Litigation Friend, advanced a claim of around £2 million before HHJ Blohm KC (“the trial judge”), founded on alleged long-term psychiatric injury, loss of earnings and injury to feelings (“Vento” damages).
The Defendant sought dismissal of the claim under section 57 of the Criminal Justice and Courts Act 2015 (“section 57”), contending that the Claimant had been fundamentally dishonest (“FD”). The trial judge agreed, finding fundamental dishonesty in relation to several aspects of the Claimant’s case: her marriage was found to be a sham, she had made dishonest benefit claims and had, over a sustained period, exaggerated her psychiatric symptoms. The trial judge terminated the Claimant’s litigant friend, finding that the Claimant did not lack capacity, and dismissed the whole claim under section 57 (“the dismissal”).
The Claimant sought permission to appeal.
Issues
Before the Constable J in the High Court (“the Judge”), the Claimant sought permission to appeal the dismissal on various grounds. The judgment dealt with three issues which may be of interest to practitioners:
- The extent to which fundamental dishonesty must be pleaded and put;
- The extent to which a court may draw inferences of dishonesty from the evidence, including evidential gaps; and
- Whether Vento damages fall within the scope of section 57 dismissal.
There was a large section of the judgment devoted to the procedural history of the claim which included at least 30 applications by, or on behalf of, the Claimant. One of the questions later addressed by the Judge was whether to issue a civil restraint (“CRO”).
The Decision
(1) Must FD be pleaded?
The Judge rejected the argument that a section 57 finding was impermissible because FD had not been pleaded nor fairly put to the Claimant in cross examination. As per Howlett v Davies [2017] EWCA Civ 1696, a defendant is not required to plead FD in terms, provided that the claimant has sufficient notice of the dishonesty case to be met by the time of trial. That is a question of “substance, not form”.
In the present case, the genuineness of the Claimant’s marriage, the authenticity of her benefit claims, and the veracity of her reported psychiatric symptoms were all clearly in issue on the pleadings and explored in evidence. The Claimant could therefore not credibly suggest ambush.
(2) Inference and evidential gaps
It was argued that the trial judge had reversed the burden of proof, requiring the Claimant to prove honesty. It was said the trial judge had relied on speculation, inference, and missing evidence.
This ground was roundly rejected by Constable J. Whilst the burden of proving dishonesty lays with the Defendant, that does not prevent a court from drawing reasonable inferences from the totality of the evidence, including from evidential gaps which one would expect to be filled if the claimant’s account were genuine.
For example, the trial judge had identified a series of evidential lacunae – the absence of ordinary indications of a genuine marital relationship – which, taken together with the positive evidence, entitled him to conclude that the marriage was not genuine. That did not amount to reversing the burden of proof but was a conventional evaluative exercise.
The Judge noted that section 57 cases frequently depend on inference. Provided the judge applies the correct legal test and gives cogent reasons, appellate interference will be rare.
(3) Do Vento damages fall to be dismissed under section 57?
The Claimant further argued that damages for injury to feelings under the Protection from Harassment Act 1997 should survive section 57 dismissal.
That argument was also rejected. An award of damages under the 1997 Act is a “statutory claim for anxiety caused by harassment”. That is a claim for personal injury and part of the “primary claim” for the purpose of section 57.
Accordingly, once fundamental dishonesty was established, Vento damages also fell to be dismissed (absent substantial injustice).
(4) Other matters
The judgment dealt with various other matters falling outside the scope of this article. However, interestingly (and topically), the Judge addressed the citation of a false authority (likely AI generated) in the Claimant’s skeleton argument at an earlier hearing. He considered that false authorities are just as unsatisfactory when presented by a litigant in person than if by a legal professional, albeit the consequences may not be as severe. The Judge was clearly unimpressed with the Claimant and her then litigation friend’s conduct throughout and decided to make a Limited CRO against both.
Comment
Taiwo, although only a decision on permission to appeal, is an interesting application of the principles of FD against an overzealous litigant in person. The question of whether Vento damages are immune from section 57 dismissal was a novel point which the Judge resolved by analogy with the Limitation Act 1980. It is a reminder that an FD finding is an evaluative finding of fact by the trial judge and there is a very high bar to overturning it on appeal.
Image ©iStockphoto.com/OJO Images
Flout the Rules and Find Out: The Unforgiving Nature of the DBA Regime - Georgina Pressdee, Temple Garden Chambers
19/12/25. On 10 September 2025, Mr Justice Dexter Dias handed down his judgment in Reeves v Frain and McKinnon [2025] EWHC 2311 (KB), concerning the regulation of damage-based agreements (DBAs).
The Issues
There were two issues in the appeal:
- Whether, under Section 58AA of the Courts and Legal Services Act 1990 (the Act) and the Damages-Based Agreements Regulations 2013 (SI 2013/609) (the Regulations), payment is only permitted out of sums recovered from another party.
- Whether Counsel’s fees can be charged as expenses.
Background
The underlying Claim was a probate dispute as to which of two wills was valid, with the later will favouring the Respondent (R) heavily at the expense of the two Applicants (As). The trial Judge upheld the validity of the earlier will and made an order granting probate, with R to pay 70% of As costs on an indemnity basis. However, at the costs hearing the DBAs agreed between As and their respective solicitors were found to be unenforceable. Both purported to renumerate the legal representatives by granting them specified percentages of “any money and non-monetary award or settlement received”.
Ruling
Issue 1
Dias J considered how key terms were defined in the Act and Regulations and concluded that the latter...
Image ©iStockphoto.com/Bet_Noire
Throwing good money after bad? A warning on wasted costs - Michael Brooks Reid, Temple Garden Chambers
20/11/25. Michael Brooks Reid comments on the Employment Appeal Tribunal’s consideration of the wasted costs jurisdiction in the case of Gurney v Randall and Others [2025] EAT 154.
The Facts
The Claimant, R, had been, though an informal arrangement beginning in 1990, a cleaner of a residential building in Harrow. In 2020, R was informed that her engagement was terminated. Wishing to challenge her termination, R was referred by her trade union to a direct access barrister, S.
R relied on S in submitting and pursuing claims in the Employment Tribunal (“ET”). The Respondents (R’s alleged employers) consistently defended the claim on the basis that R was self-employed, repeatedly warned of costs consequences including wasted costs, and made a settlement offer.
Following a preliminary hearing, the ET found R was indeed “truly self-employed” and dismissed all claims for want of jurisdiction.
The Respondents applied for a wasted costs order against S.
S’s failings
The Tribunal made several findings of deficient conduct by S, including that S had:
- failed to advise R of the risk of a costs award against her in his retainer letter and provided little evidence of having explained the significance of subsequent costs warnings.
- included an age discrimination claim which was never properly particularised, despite requests from the other side.
- failed to explain the rationale behind a £2,500 settlement offer to his client.
The Respondents argued that this conduct was negligent and/or unreasonable and that a wasted costs order should follow.
The Law
The power to make a wasted costs order arises where a representative’s "improper, unreasonable or negligent" act or omission causes a party to incur unnecessary costs. (in the civil context, section 51(7) of the Senior Courts Act 1981).
The leading authority of Ridehalgh v Horsefield [1994] Ch provides a three-stage test:
- Did the representative act improperly, unreasonably, or negligently?
- If so, did that conduct cause the applicant to incur unnecessary costs?
- If so, is it just to order the representative to compensate the applicant?
In Persaud v Persaud [2003] EWCA Civ 394, the Court of Appeal held that for the jurisdiction to be engaged, negligent conduct must be "something akin to an abuse of process" i.e. a higher standard than mere negligence. It warned of the uphill battle faced by those wishing to appeal a first instance judge’s decision on wasted costs, noting that an appeal court would only interfere “in a very rare case”.
In KL Law Ltd v Wincanton Group Ltd and Anor [2018] 5 Costs LO 639, Simler P (as she then was) held that it must be shown that a duty to the court had been breached by the legal representative. She emphasised that representatives must not be penalised for presenting their client’s case, even if it is thought to be hopeless.
The Decision
The ET refused to make a wasted costs order, finding that whilst S’s service had "deficiencies" that mightamount to negligence, they did not meet the Persaud threshold. There was no conduct akin to abuse of process.
The EAT dismissed the appeal finding that the ET had made no error of law nor any perverse factual findings.
Comment
When considering or advising on an application for wasted costs, practitioners must bear in mind the high bar set out in Persaud. Under the civil rules procedure (CPR r.46.8), the first stage is making a “show cause” order, giving the respondent the opportunity to file a witness statement, usually followed by a further hearing. In reality, the respondent is often able to craft the statement and invoke legal professional privilege to effectively shield themselves from any real scrutiny.
The danger then is that the wasted costs application fails and the applicant has thrown good money after bad, and, as the Court of Appeal made clear in Persaud, an appeal will only succeed in the rarest of circumstances; likely only where there was an obvious error of law rather than a finding that the standard was or was not met.
Whilst in the right case, the impugned conduct might be such that the Persaud standard will clearly be met, it is important before making an application for wasted costs to step back and consider the realistic prospects of success, and whether in reality, further costs are simply going to be incurred pursuing an application unlikely to succeed.
Image ©iStockphoto.com/georgeclerk
A Matter of Construction: Home Extensions under the Criminal Injuries Compensation Scheme - Georgina Pressdee, Temple Garden Chambers
18/11/25. On 12 September 2025, the Court of Appeal handed down its unanimous decision in Stephenson v First-Tier Tribunal (Social Entitlement Chamber) v Criminal Injuries Compensation Authority [2025] EWCA Civ 1160. The lead Judgment from Dingemans LJ clarifies the construction of paragraph 42(b) of the 2001 Criminal Injuries Compensation Scheme and comments on the recoverability of home extensions more generally.
Issues
Paragraph 42 makes provision for additional compensation to qualifying Claimants who were dependent on the deceased for parental services and under 18 at the time of their death. Paragraph 42 permits “such other payments as a claims officer considers reasonable to meet other resultant losses". The central issue in the appeal was how “other resultant losses” should be defined.
Factual Background
The Claimant, now aged 29, suffers from Kabuki syndrome and received the majority of his care from his mother before her death at the hands of his father when he was seven. He moved in with his maternal aunt, who had an extension built (including a wet room) to accommodate him and his siblings.
Procedural Background
The First-tier Tribunal (FTT) awarded the costs of appointing a deputy in the Court of Protection but not the costs associated with the Claimant’s trust, Court of Protection application or the extension. The FTT concluded that “other resultant losses” were those arising from the loss of parental services, which did not include...
Image ©iStockphoto.com/Ceri Breeze
More Articles...
- Managing the Risks of AI in Expert Evidence: 10 Practice Standards for Lawyers and Experts - Ramune Mickeviciute, Hugh James LLP & Geoffrey Simpson-Scott, Hodge Jones and Allen LLP
- Chaos Beats Causation: The Limits of Accident Reconstruction - Michael Brooks Reid, Temple Garden Chambers
- The Price of Change: Niprose Investments Limited and 30 Other Claimants v Vincents Solicitors Limited [2025] EWHC 2084 (Ch) - Georgina Pressdee, Temple Garden Chambers
- Fundamental Dishonesty? Court needs to see the Homework, not just the answer - Michael Brooks Reid, Temple Garden Chambers
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
