Журнал 1132-го пленарного заседания Постоянного совета
In this Part “whiplash injury” means an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).
An injury falls within this subsection if it is—
a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or
an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.
An injury is excepted by this subsection if—
it is an injury of soft tissue which is a part of or connected to another injury, and
the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (2).
For the purposes of this Part a person suffers a whiplash injury because of driver negligence if—
when the person suffers the injury, the person—
is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or
is 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,
the injury is caused—
by the negligence of one or more other persons, or
partly by the negligence of one or more other persons and partly by the negligence of the person who suffers the injury, and
the negligence of the other person or persons consists in an act or acts done by the person or persons while using a motor vehicle on a road or other public place in England or Wales.
The fact that the act or acts constituting the negligence of the other person or persons is or are also sufficient to establish another cause of action does not prevent subsection (4)(b) being satisfied.
For the purposes of this section references to a person being carried in or on a vehicle include references to a person entering or getting on to, or alighting from, the vehicle.
In this section—
“act” includes omission;
any benefit, whether or not in money or other property and whether temporary or permanent, and
“motor cycle” has the meaning given by section 185(1) of the Road Traffic Act 1988;
“motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads;
“motor vehicle” means a mechanically propelled vehicle intended or adapted for use on roads;
“act” includes omission;
The Lord Chancellor may by regulations amend the definition of “whiplash injury” in section 1, but not so as to include an injury of soft tissue other than soft tissue in the neck, back or shoulder.
Before making regulations under subsection (1), the Lord Chancellor must—
review the definition of “whiplash injury” in section 1,
as part of the review, consider whether to amend section 1,
prepare and publish a report of the review, including a decision whether or not to amend section 1 and the reasons for the decision, and
lay a copy of the report before Parliament.
After laying the copy of the report before Parliament and before making regulations under subsection (1), the Lord Chancellor must consult—
the Lord Chief Justice;
the General Council of the Bar;
the Law Society;
the Chief Medical Officer of the Department of Health and Social Care;
the member of staff of the Welsh Government designated by the Welsh Ministers as the Chief Medical Officer for Wales;
such other persons or bodies as the Lord Chancellor considers appropriate.
The Lord Chancellor may not carry out the first review under subsection (2) before the end of the period of three years beginning with the day on which section 1 comes into force.
After the first review, the Lord Chancellor may not carry out a review under subsection (2) before the end of the period of three years beginning with—
if regulations under subsection (1) were made following the previous review, the day on which those regulations came into force, or
if no regulations under subsection (1) were made following the previous review, the day on which a copy of the report of the previous review was laid before Parliament.
A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.
This section applies in relation to the determination by a court of damages for pain, suffering and loss of amenity in a case where—
a person (“the claimant”) suffers a whiplash injury because of driver negligence, and
the duration of the whiplash injury or any of the whiplash injuries suffered on that occasion—
does not exceed, or is not likely to exceed, two years, or
would not have exceeded, or would not be likely to exceed, two years but for the claimant's failure to take reasonable steps to mitigate its effect.
The amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury or injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor.
If the claimant suffers one or more minor psychological injuries on the same occasion as the whiplash injury or injuries, the amount of damages for pain, suffering and loss of amenity payable in respect of the minor psychological injury or the minor psychological injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor.
If regulations made by the Lord Chancellor so provide, the amount of damages for pain, suffering and loss of amenity payable in respect of— taken together, is to be an amount specified in regulations made by the Lord Chancellor (notwithstanding subsections (2) and (3)).
the whiplash injury or injuries, and
a minor psychological injury or injuries suffered by the claimant on the same occasion as the whiplash injury or injuries,
Regulations under this section may in particular—
specify different amounts in respect of different durations of injury;
specify amounts in respect of minor psychological injuries by reference to the duration of the related whiplash injury or injuries.
Regulations under this section may provide for a person to be treated as if the person had taken reasonable steps to mitigate the effect of the person's whiplash injury or minor psychological injury.
Regulations under this section amending or replacing earlier regulations may increase or reduce amounts payable in respect of injuries.
Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person's injuries (subject to the limits imposed by regulations under this section).
Nothing in this section prevents the amount of damages payable being reduced by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945.
This section does not apply in relation to damages payable by a person because of the person's breach of the duty under section 143(1)(b) of the Road Traffic Act 1988 (duty not to cause or permit any other person to drive without insurance or security in respect of third party risks).
The Lord Chancellor must consult the Lord Chief Justice before making regulations under this section.
A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.
The Lord Chancellor must carry out reviews of regulations made under section 3.
The first review must be completed before the end of the period of three years beginning with the day on which the first regulations under section 3 come into force.
Subsequent reviews must be completed before the end of the period of three years beginning with the day on which the previous review was completed.
The Lord Chancellor must prepare and publish a report of each review.
The Lord Chancellor must lay a copy of each report before Parliament.
Regulations made by the Lord Chancellor may provide for a court—
to determine that the amount of damages payable for pain, suffering and loss of amenity in respect of one or more whiplash injuries is an amount greater than the tariff amount relating to that injury or those injuries;
to determine that the amount of damages payable for pain, suffering and loss of amenity in respect of one or more whiplash injuries and one or more minor psychological injuries, taken together, is an amount greater than the tariff amount relating to those injuries;
in a case where the court considers the combined effect of— to 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).
an injury or injuries in respect of which a tariff amount is specified by regulations under section 3(2) or (4), and
one or more other injuries,
The regulations may require a court to be satisfied, before making the determination mentioned in subsection (1)(a), (b) or (c), that—
the degree of pain, suffering or loss of amenity caused by the whiplash injury or injuries in question makes it appropriate to use the greater amount, and
it is the case that—
the whiplash injury is, or one or more of the whiplash injuries are, exceptionally severe, or
where the person's circumstances increase the pain, suffering or loss of amenity caused by the injury or injuries, those circumstances are exceptional.
The regulations must specify the maximum percentage by which the greater amount mentioned in subsection (1)(a), (b) or (c) may exceed the relevant tariff amount.
Regulations under this section amending or replacing earlier regulations may increase or reduce the maximum percentage.
The Lord Chancellor must consult the Lord Chief Justice before making regulations under this section.
A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.
In this section “tariff amount” means—
in relation to one or more whiplash injuries, the amount specified in respect of the injury or injuries by regulations under section 3(2);
in relation to one or more whiplash injuries and one or more minor psychological injuries, the amount specified in respect of the injuries by regulations under section 3(4).
A regulated person is in breach of this section if—
the regulated person knows or has reason to suspect that a whiplash claim is being made,
the regulated person does, or arranges or advises the doing of, an act mentioned in subsection (2), without first seeing appropriate evidence of the whiplash injury or injuries, and
the regulated person is acting as such when the regulated person does, or arranges or advises the doing of, that act.
The acts referred to in subsection (1) are—
inviting a person to offer a payment in settlement of the claim;
offering a payment in settlement of the claim;
making a payment in settlement of the claim;
accepting a payment in settlement of the claim.
The Lord Chancellor may by regulations make provision about what constitutes appropriate evidence of an injury for the purposes of this section.
The regulations may in particular—
specify the form of any evidence of an injury;
specify the descriptions of persons who may provide evidence of an injury;
require persons to be accredited for the purpose of providing evidence of an injury;
make provision about accrediting persons, including provision for a person to be accredited by a body specified in the regulations.
A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.
In this section “whiplash claim” means a claim that consists only of, or so much of a claim as consists of, a claim for damages for pain, suffering and loss of amenity caused by—
one or more whiplash injuries suffered by a person on a particular occasion because of driver negligence and in relation to which section 3 applies, or
a whiplash injury or injuries within paragraph (a) suffered by a person on a particular occasion and one or more minor psychological injuries suffered by the person on the same occasion as the whiplash injury or injuries.
The relevant regulator must ensure that it has appropriate arrangements for monitoring and enforcing compliance with the restrictions imposed on regulated persons by section 6.
The relevant regulator may make rules for the purposes of subsection (1).
The rules may in particular provide that, in relation to anything done in breach of section 6, the relevant regulator may exercise any powers that the regulator would have in relation to anything done by the regulated person in breach of another restriction (subject to subsections (5) and (6)).
Where the relevant regulator is the Financial Conduct Authority, section 8 applies instead of subsections (1) to (3).
A breach of section 6—
does not make a person guilty of an offence, and
does not give rise to a right of action for breach of statutory duty.
A breach of section 6 does not make an agreement to settle the whiplash claim in question void or unenforceable.
The Treasury may make regulations to enable the Financial Conduct Authority, where it is the relevant regulator, to take action for monitoring and enforcing compliance with the restrictions imposed on regulated persons by section 6.
The regulations may apply, or make provision corresponding to, any of the provisions of the Financial Services and Markets Act 2000 with or without modification.
Those provisions include in particular—
provisions as to investigations, including powers of entry and search and criminal offences;
provisions for the grant of an injunction in relation to a contravention or anticipated contravention;
provisions giving Ministers or the Financial Conduct Authority powers to make subordinate legislation;
provisions for the Financial Conduct Authority to charge fees.
The power to make regulations under this section may not be used to make provision inconsistent with section 7(5) and (6).
A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.
For the purposes of this Part, in relation to an act mentioned in section 6(2), a regulator listed in the first column is the relevant regulator in relation to the regulated person listed in the corresponding entry in the second column. Regulator Regulated person The Financial Conduct Authority An authorised person (within the meaning of the Financial Services and Markets Act 2000) of a description specified in regulations made by the Treasury The Claims Management Regulator A person authorised by the Regulator under section 5(1)(a) of the Compensation Act 2006 to provide regulated claims management services The General Council of the Bar A person authorised by the Council to carry on a reserved legal activity within the meaning of the Legal Services Act 2007 The Law Society A person authorised by the Society to carry on a reserved legal activity within the meaning of the Legal Services Act 2007 The Chartered Institute of Legal Executives A person authorised by the Institute to carry on a reserved legal activity within the meaning of the Legal Services Act 2007 A licensing authority for the purposes of Part 5 of the Legal Services Act 2007 (alternative business structures) A person who is— licensed by the authority to carry on a reserved legal activity within the meaning of the Legal Services Act 2007, and of a description specified in regulations made by the Lord Chancellor A regulatory body specified for the purposes of this subsection in regulations made by the Lord Chancellor A person of a description specified in the regulations in relation to the body
A statutory instrument containing regulations under subsection (1) is subject to negative resolution procedure.
In this Part—
a reference to making a claim against a person includes a reference to notifying a person of the basis of a claim;
a reference to making a payment to a person includes a reference to conferring a benefit on a person or a third party.
In this Part—
effecting or carrying out contracts of insurance as principal, or
“road” means a highway or other road to which the public has access, and includes bridges over which a road passes.
“relevant third party personal injury policy of insurance” means a third party personal injury policy of insurance issued by an insurer to an individual domiciled in England and Wales;
“report year” means a year beginning with 1 April 2020, 2021 or 2022;
“report period” means the period of three years beginning with 1 April 2020;
Before section 1 of the Damages Act 1996 (assumed rate of return on investment of damages) insert—
Before the Schedule to the Damages Act 1996 insert—
Any order made by the Lord Chancellor under section 1(1) of the Damages Act 1996 which relates to England and Wales and is in force immediately before the time when subsection (1) comes into force is to be treated after that time as if made by the Lord Chancellor under section A1(1) of that Act.
In consequence of the amendments made by subsections (1) and (2), the Damages Act 1996 is amended as follows—
section 1 is omitted;
in section 2(4)(a), for “the Schedule” substitute “ Schedule 1 ”;
in section 2(7)(b), for “the Schedule” substitute “ Schedule 1 ”;
in section 6(9), for “The Schedule” substitute “ Schedule 1 ”;
the existing Schedule becomes Schedule 1 (and, accordingly, for the heading “ Schedule ” substitute the heading “ Schedule 1 ”).
Regulations made by the Treasury may require an insurer to provide information to the FCA about the effect of Parts 1 and 2 of this Act on individuals who hold policies of insurance with the insurer.
The regulations may provide that an insurer is required to provide information only if it has issued third party personal injury policies of insurance on or after 1 April 2020 to individuals domiciled in England and Wales.
The regulations may—
specify the information or descriptions of information to be provided;
specify how information is to be provided;
specify when information is to be provided;
require that information or specified descriptions of information be audited by a qualified auditor before being provided;
make provision about the audit;
require that details of the auditor be provided to the FCA.
Regulations under subsection (3) (a) may in particular require an insurer to provide information, by reference to each of the report years, about—
the amount paid by the insurer during the report period under its relevant third party personal injury policies of insurance in respect of personal injuries sustained by third parties, where the amount of damages for the injury is governed by the law of England and Wales;
the amount that the insurer might reasonably have been expected to pay in respect of those injuries if this Act had not been passed;
the mean of the amounts paid during the report period under those policies in respect of those injuries;
what might reasonably have been expected to be the mean of the amounts paid in respect of those injuries if this Act had not been passed;
the amounts described in paragraphs (a) to (d), determined by reference only to cases where— falls within one of the bands specified in the regulations;
the amount paid by an insurer under a policy, or
the amount that an insurer might reasonably have been expected to pay under a policy,
the amount charged by the insurer by way of premiums for relevant third party personal injury policies of insurance where the cover starts in the report period;
the amount that the insurer might reasonably have been expected to charge by way of premiums for those policies if this Act had not been passed;
the mean of the premiums charged for those policies;
what might reasonably have been expected to be the mean of the premiums charged for those policies if this Act had not been passed;
the amounts described in paragraphs (f) to (i), determined as if the references to a premium charged for a relevant third party personal injury policy of insurance were references to so much of the premium as is charged in order to cover the risk of causing a third party to sustain personal injury;
if any reduction in the amounts referred to in paragraph (a) has been used to confer benefits other than reduced premiums on individuals, those benefits.
The regulations may make provision about the methods to be used in determining the amounts described in subsection (4) (b), (d), (g) and (i), including provision about factors to be taken into account.
The regulations may provide for exceptions, including but not limited to—
exceptions relating to policies of insurance obtained wholly or partly for purposes relating to a business, trade or profession,
exceptions relating to policies of insurance of a specified description,
exceptions for cases where the value or number of policies of insurance issued by an insurer is below a level specified by or determined in accordance with the regulations, and
exceptions relating to insurers who, during the report period, issue policies of insurance only within a period that does not exceed a specified duration.
Before the end of a period of one year beginning with 1 April 2024, the Treasury must prepare and lay before Parliament a report that—
summarises the information provided about the effect of Parts 1 and 2 of this Act, and
gives a view on whether and how individuals who are policy holders have benefited from any reductions in costs for insurers.
If insurers provide additional information to the FCA about the effect of Parts 1 and 2 of this Act, the report may relate also to that information.
The FCA must assist the Treasury in the preparation of the report.
In the Financial Services and Markets Act 2000—
in section 1A (functions of the Financial Conduct Authority), in subsection (6), after paragraph (cza) insert—;
in section 204A (meaning of “relevant requirement” and “appropriate regulator”)—
in subsection (2), after paragraph (a) insert—;
in subsection (6), after paragraph (a) insert—.
A statutory instrument containing regulations under this section is subject to affirmative resolution procedure.
In this section—
“third party personal injury policy of insurance” means a policy of insurance issued by an insurer which provides cover against the risk, or risks that include the risk, of causing a third party to sustain personal injury.
“report year” means a year beginning with 1 April 2020, 2021 or 2022;
“report period” means the period of three years beginning with 1 April 2020;
“relevant third party personal injury policy of insurance” means a third party personal injury policy of insurance issued by an insurer to an individual domiciled in England and Wales;
Regulations under this Act are to be made by statutory instrument.
Where regulations under this Act are subject to “negative resolution procedure” the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament.
Where regulations under this Act are subject to “affirmative resolution procedure” the regulations must not be made unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House of Parliament.
Regulations under this Act may—
make different provision for different purposes;
make consequential, supplementary or incidental provision;
make transitional, transitory or saving provision.
Subsection (4) does not apply to regulations under section 14.
This Act extends to England and Wales only, subject to the following subsections.
Section 10(4)(b) and (c) extend to England and Wales and Northern Ireland.
Section 10(4)(d) and (e) extend to England and Wales, Scotland and Northern Ireland.
Sections 11(10) and 12 to 15 extend to England and Wales, Scotland and Northern Ireland.
This Act comes into force on such day as the Secretary of State may by regulations appoint, subject to subsection (2).
Part 2 and this Part come into force on the day on which this Act is passed.
Regulations under this section may—
appoint different days for different purposes;
make transitional, transitory or saving provision.
This Act may be cited as the Civil Liability Act 2018.