PI Brief Update

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 –

1. 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.
2. 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:

1. The definition of a minor psychological injury.
2. What constitutes an injury connected to a non-tariff injury.
3. The appropriate award for mixed (tariff and non-tariff) injuries.
4. 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:

1. Revise the SCT limit to £1,500.
2. Improve the OIC portal’s usability, visibility and legitimacy and link them with other civil justice services.
3. 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.

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