The Whiplash Injury Regulations 2021 came into force on 31 May 2021. They provide a standardised set of tariff amounts of damages for pain, suffering and loss of amenity, which are payable for whiplash injuries sustained in road traffic accidents lasting up to 24 months. The Regulations apply only to causes of action which accrue on or after 31 May 2021 - Reg 1(2).

Duration of injury	Amount (£) – Regulation 2(1)(a)	Amount (£) – Regulation 2(1)(b)
Not more than 3 months	240	260
More than 3 months, up to 6 months	495	520
More than 6 months, up to 9 months	840	895
More than 9 months, up to 12 months	1320	1390
More than 12 months, up to 15 months	2040	2125
More than 15 months, up to 18 months	3005	3100
More than 18 months, up to 24 months	4215	4345

The middle column of three in the above table sets out the tariff amounts for whiplash-only injuries. The right-hand column sets out the tariff amount where a whiplash injury is combined with one or more minor psychological injuries. 

Regulation 3 addresses the possibility of an uplift on the above tariff amounts, of up to 20%, in exceptional circumstances, or where the injuries are exceptionally severe. Regulation 4 sets out the medical evidence required before a regulated person may offer to settle or accept an offer to settle a whiplash claim.

The coming into force of the Regulations coincided with the coming into force of the new ‘RTA Small Claims Protocol’, the full title of which is the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents. The Protocol does not apply to child claimants or protected parties. It applies only to road traffic accidents which occur on or after 31 May 2021; therefore, any claims being issued for accidents which took place before this date must still be issued using the pre-existing procedures, for instance under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

The Protocol introduces a new online portal, called Official Injury Claim. Official Injury Claim is being delivered by the Motor Insurers’ Bureau (MIB) on behalf of the Ministry of Justice. This has been designed to be user-friendly, and accessible to litigants in person as well as legal professionals. The Protocol applies to claims arising from road accidents which are valued in total at no more than £10,000.00, and for which the personal injuries are valued at no more than £5,000.00. In those circumstances, because of the now-increased Small Claims Track threshold of £5,000.00 for personal injury claims pursuant to CPR r.26.6(1)(aa), the Small Claims Track is the appropriate track for such a claim.

The new Practice Direction 27B applies to claims which started life under the RTA Small Claims Protocol. PD 27B compasses a number of different scenarios depending on whether liability and/or quantum are disputed, and sets out the court procedure to be followed for each eventuality.

There is currently uncertainty amongst practitioners surrounding the appropriate procedure for settling or pursuing claims for damages where there are injuries including whiplash and at least one other type of injury. For whiplash, there is now a tariff, whereas for other injuries, no such tariff exists. This places the value of general damages in a ‘no man’s land’. By way of response to this, a working group facilitated by the MIB, consisting of representatives from the Association of British Insurers, the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society, have collaborated on creating a framework by which they can bring test cases to the Court of Appeal, in order to obtain clarity on the correct law and procedure for such claims involving mixed injuries.

Practitioners and stakeholders can anticipate some time will be taken for the bedding-in of the new Protocol/Practice Direction and the inevitable litigation surrounding its interpretation.