PI Brief Update

Editorial: Brexit and Personal Injury Litigation - Aidan Ellis, Temple Garden Chambers

28/07/16. Unlike most daily newspapers, some professional publications like the British Medical Journal or even various employers, PIBULJ avoided expressing a view on the referendum on EU membership. But now that the results are in, our thoughts inevitably turn to the likely impact of leaving the EU on our area of work.

In common with quite a number of issues at the moment, I suspect that the answer is that no-one knows what the impact on personal injury litigation will be. In the short term, there will be no impact at all; it will take time to extricate the UK from the EU and, in the interim, the legal position will be unchanged. As for the longer term position, that depends on exactly what form our ongoing relationship with the EU takes. If we opt for access to the single market, it may be that we need to continue to abide by most EU laws, in which case the impact on personal injury litigation would be very limited. If, on the other hand, we opt for a more distant relationship, there would be more scope for reform. However, even in this scenario, it remains unclear what laws relevant to personal injury claims would be amended. It would surely be politically unattractive to sweep away the directives on consumer protection or health and safety entirely.

Take one specific example: the provisions of the Road Traffic Act 1988 and the Motor Insurers’ Bureau scheme are largely underpinned by European Directives on Motor Insurance. Historically, issues have arisen about whether English law correctly implements the various directives. On occasions, such as Churchill Insurance v Fitzgerald, the Courts have read words into the Road Traffic Act to make certain provisions comply with European law. On other occasions such as Silverton v Goodall, the Courts have found that the Act meets the minimum requirements of European Law. After Brexit, arguments based on the interpretation of the underlying Directives would presumably become less important (though not wholly irrelevant – if a statute was enacted to comply with a Directive, the Directive might still be a relevant tool in interpreting the statute even if – post Brexit – the Directive itself no longer strictly applies). But in any event, the vast majority of cases would surely be unaffected; it is difficult to imagine any enthusiasm for more dramatic changes such as removing the MIB scheme altogether. As a result, we might anticipate some changes in emphasis on some technical arguments, but little real impact on the majority of claims.

Whilst there are undoubtedly areas of practice that will be significantly and immediately affected by Brexit, it is suggested that personal injury law is likely to escape relatively unscathed. Any immediate impact is more likely to come from a tangential delay to other threatened reforms than from wholesale changes to the law. Whilst it is more difficult to speculate over the long term implications, there is room to hope that the impact will remain relatively limited.

Aidan Ellis
Temple Garden Chambers

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