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Government Shift in Whiplash Claims Policy Upheld

Businesses which suffer due to shifts in government policy are not without recourse. However, one matter involving the introduction of a centralised means of instructing medical experts in whiplash cases underlined that the public interest will generally prevail.

The Ministry of Justice (MoJ) introduced the new system in response to a perceived mismatch between the decline in the number of road accidents and the increase in the number of whiplash claims. The system required personal injury solicitors to identify and instruct medical experts in such cases via an online portal administered by a private company on the MoJ’s behalf.

A medical reporting organisation (MRO), which specialised in arranging medical reports for litigation, noticed an immediate falling off in its business on the introduction of the new regime. In mounting a judicial review challenge, the MRO argued that the new system’s design was seriously flawed and that its introduction was irrational and anti-competitive.

In dismissing the challenge, however, the High Court noted that the fact that the new system adversely affected the MRO’s business did not mean that it was irrational. The system did not bar the MRO and others in the same position from developing their businesses and did not impinge unreasonably on the free market. The company which administered the system would perform a regulatory role on behalf of the MoJ which would not itself have any financial or economic interest in the market.