Andrew Perfect examines what Brexit means for Personal Injury

27th June 2016

Now what? A brief speculation about what the UK’s vote to leave the EU might mean for personal injury law - by 3PB Barrister Andrew Perfect, Member of 3PB's Personal Injury and Clinical Negligence Team.

The UK’s vote to leave the European Union last week has left many with a feeling of political whiplash. For PI practitioners there is probably no immediate reason for panic.

In the short term – one to two years – it’s likely that nothing much is going to happen. It’s a safe bet that dealing with the political and economic fallout of Brexit, let alone actually negotiating exit and legislating for it, is going to take up a lot of attention and parliamentary time. It’s not difficult to foresee that previous suggestions for legislation might fall by the wayside.

Perhaps that’s a good thing. In his latest Autumn Statement George Osborne set out some concerning proposals for increasing the small claims limit and ending low-value whiplash claims. The MoJ subsequently indicated that legislation would be brought forward for implementation in 2017. Yet a briefing paper of May 2016 gave no firm date as to when even consultation might begin. It’s unlikely the EU referendum outcome is going to speed things up.

The medium term – two to five years – is where the action will be. At some point during this period some form of departure from the European Union will take place. As the form of departure crystallises much will then become apparent about what the personal injury world is going to look like post-exit.

Of itself, Brexit will not likely result in any immediate changes to primary or secondary legislation that concerns personal injury. Yet it will almost certainly make a number of things more complicated over time.

For example, the ability of injured persons to sue an insurer directly in the UK stems from European directives, particularly for road traffic accidents. Likewise, Rome II governs non-contractual obligations and is of particular use for consumer protection law across the European Union. Similar points apply to those injured abroad, particularly whilst on holiday. It’s difficult to see why a post-Brexit government would wish to alter these things. It’s probably more likely than not that they won’t. But the nature of exit and the subsequent relationship will be determinative.

For workplace injury the utility of the six-pack regulations, each stemming from European legislation, has already been watered down. Again, in either the short or medium term it is difficult to see any real further change here as a result of the Leave vote.

Yet it does bring out the long-term point. The 1973 preference for the European economic project was predominantly business focused. There was at that time much disquiet from organised labour as to what it all meant for the worker. Yet over time ‘Europe’, certainly since its reformulation as the European Union, has been seen as a place where the worker, the consumer, and more generally the injured European individual, looks for protection and assistance.

Perhaps the key long-term issue, so far as any can be seen today, is that the argument just won in the referendum took a very dim view of the legislation that comes from Europe, notwithstanding that, so far as the items mentioned here are concerned, it seems to be to the advantage of the vast majority of people.

The risk is that any bonfire of red tape – of legislation stemming from European regulations – might be defined more by opposition to Europe than anything else. That could do much damage, and remove many of the avenues to redress upon which huge numbers of people rely. Put simply, section 69 of the Business Enterprise and Regulatory Reform Act 2013 may simply be a weak foretaste of much that is yet to come.