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1 CHANGES AND EXTENSION TO THE PORTAL PROPOSED OR OTHERWISE Chris Rafferty INTRODUCTION The proposed reforms of the RTA Portal Scheme have been few and far between to date, but are nevertheless worthy of careful note - the alterations are to affect the framework of the scheme itself. The boundaries of the Portal are expected to be stretched both horizontally, through the introduction of EL and PL claims, and vertically, in respect of the Protocol s upper value limit. Whilst a number of changes have long been anticipated, notably reform of the fixed costs recoverable at Stage 1, certain perceived deficiencies have not been addressed within the proposed reforms. Worse, perhaps, are allegations that the reforms as they stand are manifestly unjust. I will deal briefly here with the following: 1. The main proposed reforms to the Portal in respect of RTA claims 2. The costs position in relation to RTA and claims 3. The timetable for implementation of the proposed reforms RTA REFORMS The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ( the Protocol ) has been amended in several key areas, not yet three years after its inception. Claim Value The framework of the Portal is to be altered to capture a greater swathe of RTA claims. In order to achieve the upper value limit for claims entering the Portal is to be extended from the previous 10,000 limit to a new limit of 25,000 para 1.2(1)(a). This will clearly have the effect of regulating a much greater number of RTA claims, increasing the scope of the Portal to include those claimants who have 1

2 suffered more severe injuries. Such injuries are likely to be, towards the upper limit, permanent. As such the complexity of claims falling within the scope of the Protocol is likely to increase, necessitating an increase in the amount of work required by more experienced handlers. For accidents which have occurred before on or after 30 April 2010 and before 01 April 2013, the upper limit remains 10,000 para 1.2(1)(b). Preamble The Court has always, under the Civil Procedure Rules, been able to impose costs sanctions arising from non-compliance with any Protocol. However a new warning is to be inserted into the preamble of the Protocol at para 2.1 (emphasis added): This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than the Protocol upper limit as a result of a personal injury sustained by that person in a road traffic accident. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where it is not followed. Such an express warning is perhaps an indicator that, as expected, costs sanctions are likely to be used more frequently in relation to Protocol breaches in light of the reforms. Document Exchange Communications between parties is to be more strictly regulated within the confines of the Portal. All documents which the Portal requires one party to share with another must be sent via the Portal itself para 5.1. All documentation to be exchanged between parties but which isn t specifically required by the Portal must be exchanged via para 5.1. This might include for example statements relating to hire charges. Fixed Costs (Stage 1) Previously the time at which Stage 1 fixed costs were to be paid was within 10 days of receiving the liability response. The proposed amendments to the Protocol 2

3 will require such fixed costs to be paid within 10 days of receipt of the Stage 2 settlement pack para There have long been allegations that claims were being brought solely with a view to pocketing the fixed costs, irrespective of the legitimacy or merits of said claims. Regardless of the substance of such allegations, it would seem that the above amendment is designed to allay concerns, predominantly from insurers, about this practice. In any event, such an amendment should encourage parties to move swiftly onto Stage 2. Medical Records and Photographs (Stage 2) The amended Protocol will require further steps to be taken in relation to disclosure of material relevant to a claimant s injuries. Whilst it is not expected that medical records will be necessary or appropriate in the majority of claims with a value less than 10,000 (para 7.5), a claimant will now nevertheless be required to disclose any medical records that the medical expert deems relevant to the injuries para 7.4(2). In addition, any relevant photographs of the claimant s injuries must be disclosed para 7.6. Further Medical Reports (Stage 2) In relation to the commissioning of subsequent medical reports, the previous Protocol indicated that: A subsequent medical report may be necessary (1) where the first medical report recommends that further time is required before a prognosis of the claimant's injuries can be determined; or (2) where the claimant is receiving continuing treatment The wording of this paragraph has been slightly changed in the Protocol, requiring a further report to be justified para

4 In addition to the two circumstances in which a further report may be necessary under the previous Protocol (above), the Protocol proposes a third justification :...where the claimant has not recovered as expected in the original prognosis para 7.8(3). What effects this change in terminology will have remains to be seen. Non-Medical Expert Reports (Stage 2) The Protocol attempts to tighten up on the use of further experts reports by stating that they won t be necessary in the majority of claims, and that they should be commissioned where they would be reasonably required to value the claim para 7.9(1). Witness Statements (Stage 2) As with non-medical expert reports, witness statements are similarly not expected to be required in the majority of claims, however they may be provided where reasonably required to value the claim para Effect of the Reforms Whilst a number of areas are covered as above, there remains no provision for certain aspects of a claim. Notably the Protocol is silent as to a defendant questioning experts. Similarly no provision is made for defendants obtaining their own medical evidence. COSTS The fixed recoverable costs under the previous Portal were fixed at 1,200 for all claims up to 10,000 in value. The reformed Portal scheme limits RTA costs in two ways: 4

5 1. For claims valued up to 10,000, fixed recoverable costs are to be reduced to For claims valued up to 25,000, fixed recoverable costs are to be reduced to 800. Further, as indicated above the Portal is to extend to EL and PL claims. Fixed recoverable costs for all such claims are set at 900. A number of questions arise. Claims valued at 25,000 are likely to relate to serious injuries, often degenerative or permanent, requiring a significant amount of medical and expert input and rising in complexity. Is it reasonable to expect such claims to be dealt with at a cost of 800? Similarly, is it reasonable for claims worth 10,000, also potentially severe and complex, to be dealt with at a cost of 500? TIMETABLE DATE EFFECT AREA March Release of draft technical specifications for A2A RTA Release of final technical specifications for A2A RTA April May Release of draft technical specifications for A2A May New claims portal website to go live RTA and End of May New training site for web users RTA and End of May A2A integration site available RTA July Release of final technical specifications for A2A and A2A integration site available with support End of July Claims portal web interface launched RTA and End of July Claims portal A2A interface launched RTA End of September New A2A interface introduced 5

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