BC Legal Update. Extending the RTA Portal to Disease claims. May Introduction

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1 Extending the RTA Portal to Disease claims May Introduction In July 2013 the existing RTA PI protocol will be extended to EL and PL claims. In addition, the value of claims captured by the protocol will be increased to claims up to the value of 25,000. This documents sets out the basic arrangement of the new EL/PL protocol and some information on the practical implementation of the scheme. 2. The Protocol Aim and applicability The new protocol, Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims ( the Protocol ), currently remains in draft form. The aim of the Protocol is to ensure defendants pay damages and costs using the process in the Protocol without the necessity for proceedings to be commenced; that damages are paid in a reasonable time; and that the claimant s legal representative receives fixed costs at each appropriate stage (para 3.1). The Protocol will apply to the following claims: o those arising from an incident occurring after 1 April 2013, or, in disease claims, where no letter of claim has been sent to the defendant before 1 April 2013; o the claim includes damages in respect of personal injury; o the claimant values the claim at not more than 25,000 on a full liability basis including pecuniary losses but excluding interest; and o if proceedings were started the small claims track would not be the normal track for that claim (para 4.1). 1 P a g e

2 The Protocol ceases to apply if at any stage the claimant notifies the defendant the claim has now been revalued at more than 25,000 (para 4.2). The Protocol does not apply to the following occupational disease claims: o where the claimant is deceased; o where the defendant is insolvent and there is no identifiable insurer; o where there are multiple defendants; o where the accident or alleged breach of duty occurs outside of England and Wales; and o mesothelioma claims (para 4.3). Method of communication All information required to be sent by the Protocol must be sent by the new Claims Portal. Any other written communication must be by (para 5.1). Stages of the process There are 2 principle stages to the process. Stage 1 (para ) The claimant sends a Claim Notification Form (CNF) to the defendant s insurer and the Defendant Only CNF to the defendant (unless the defendant is insolvent, has ceased to trade or has been dissolved). If the insurer s identity is unknown (following a reasonable attempt at identification, and a search through the Employers Liability Tracing Office in EL claims) then the CNF is sent to the defendant. If the CNF or Defendant Only CNF cannot be sent to the defendant via the Claims Portal then it must be sent via first class post. The CNF contains mandatory information. The defendant s insurer must send an electronic acknowledgement of receipt through the Claims Portal to the claimant the day after receipt of the CNF. If the CNF was sent direct to the defendant they must acknowledge receipt electronically through the Claims Portal and send the CNF to the insurer (advising the claimant that this has been done). The insurer must then acknowledge receipt to the claimant through the Portal. The claimant must then submit the CNF to the insurer through the Claims Portal as soon as possible and, in any event, within 30 days of sending it initially to the defendant. The defendant/insurer must complete the response section of the CNF within 30 days of deemed service in an EL claim or 40 days in a PL claim. Liability must be admitted or denied. Admission of liability is defined as an admission of breach causing damage and there is no limitation defence (para 1.1(1)). If liability is denied brief reasons must be given in the CNF response. The claim will subsequently proceed according to the relevant Pre-Action Protocol and the CNF is treated as the letter of claim (except where the CNF contained inadequate information). Time under the relevant protocol will run from the date of acknowledgement. The defendant/insurer must apply for a CRU certificate before the end of stage 1. The defendant/insurer must pay Stage 1 fixed costs within 10 days of receiving the Stage 2 Settlement Pack. 2 P a g e

3 Claims that leave the Claims Portal at Stage 1 Claims can leave Stage 1 in the following circumstances (whereupon they proceed under the relevant Pre Action Protocol): o if contributory negligence is alleged; o if the CNF response is not completed and sent in the relevant time period; o if liability is not admitted; or o if the defendant/insurer notifies the claimant that it considers that the CNF contains inadequate mandatory information or, if proceedings were issued, the small claims track would be the normal track for that claim. Stage 2 (para ) Medical reports: o The claimant obtains a medical report, if not already obtained. o Additional reports are permissible if the injuries so require. o Subsequent medical reports may be justified if, for example, the prognosis is uncertain. Non-medical reports: o Generally not required, but may be obtained where reasonably necessary to value the claim. o Additional reports may be justifiable. Specialist legal advice: o In some cases valued at more than 10,000 additional advice from a specialist solicitor or counsel may be justified. o Where a claimant obtains more than one expert report or specialist advice the defendant may refuse pay the costs of any report which are not reasonably required. Details of loss of earnings: o In an EL claim the defendant must provide earnings details to verify the claimant s loss of earnings, if any, within 20 days of the date of admitting liability. Witness statements: o Not required in most cases. May be provided where reasonably required to the value the claim. Stay of process: o Should be agreed between the parties for a suitable period where the claimant needs to obtain a subsequent medical report or a non-medical report. The claimant may then request an interim payment. Interim payments: o The claimant can request an interim payment of 1,000 or more using an Interim Settlement Pack. Initial medical reports, evidence of pecuniary losses and disbursements must also be sent. If more that 1,000 is requested then the claimant must specify the heads of damage which are the subject of request and reasons for the request. o The defendant/insurer must pay the 1,000 within 10 days of receipt of the Interim Settlement Pack. This does not apply in a respiratory disease claim unless there is a valid CRU certificate showing no deduction for recoverable lump sums. 3 P a g e

4 o If more than 1,000 is requested the defendant/insurer must pay the full amount, less any deductible amount payable to the CRU, within 15 days. Alternatively a different sum, not less than 1,000, can be paid if reasons are given. o In claims valued at more than 10,000 the claimant may request more than one interim payment. o Where the claimant is not paid at all or is not satisfied with the sum paid the claimant can commence Part 7 proceedings and apply for an interim payment. Within 15 days of the claimant approving the final medical report and agreeing to rely on the prognosis in that report, or any non-medical expert report (whichever is later), the claimant must send the Stage 2 Settlement Pack to the defendant. The Stage 2 Settlement Pack must comprise: o the Stage 2 Settlement Pack Form; o a medical report or reports; o evidence of pecuniary losses; o evidence of disbursements (for example the cost of any medical report); o any non-medical expert report; o any medical records/photographs served with medical reports; and o any witness statements. There is a 35 day consideration period of the Stage 2 Settlement Pack for negotiations and settlement offers. The period can be extended by agreement between the parties. The period is split into an initial 15 day period for consideration of the pack and an option to make an offer. The remainder of the period is for any further negotiation between the parties. If either party makes an offer 5 days or less before the end of the 35 day consideration period (or any extended period) then the period will be extended by 5 days to allow the relevant party to consider that offer. No further offers can be made during this period by either party. When making any counter offers the defendant must give reasons for any reduction in a particular head of damage. If a claim is settled at this stage the defendant accepts to pay Stage 2 costs, disbursements allowed in accordance with rule 45.19, and any success fee where a conditional fee agreement was entered into before 1 April The value of any disbursements can be disputed and subject to separate proceedings. In the event of non-agreement in the relevant periods, the claimant must send the defendant a completed Court Proceedings Pack. The defendant must pay the final offer of damages made by the defendant, Stage 2 fixed costs and agreed disbursements (or in the event disbursements have not been agreed, such amount as the defendant considers reasonable), within 15 days of receiving the Court Proceedings Pack. Claims that leave the Claims Portal at Stage 2 Claims can leave stage 1 in the following circumstances: o where the defendant has failed to make an interim payment; o where the defendant does not make an interim payment of greater than 1,000 as requested by the claimant. 4 P a g e

5 In both these cases the claimant must give notice to the defendant that the claim will no longer proceed under the Protocol. Unless the notice is sent to the defendant within 10 days after the expiry of the relevant period the claim will continue under the Protocol. o where the defendant considers that, if proceedings were started, the small claims track would be the normal track for that claim; o where the defendant withdraws the admission of causation; o where the defendant does not respond within the first 15 days of the consideration period; or o where the claimant gives notice to the defendant that the claim is unsuitable for the Protocol because, for example, there are complex issues of fact or law or where he claimants contemplate applying for a Group Litigation Order. 3. Timetable and Using the Claims Portal The new Protocol will be administered through the portal that was formally used for the low value RTA protocol. The portal will be rebranded the Claims Portal. The timetable currently envisaged for implementation is set out below: Phase 1: Web interface for RTA and EL/PL, A2A interface for RTA only: March Beginning of April Beginning of May End of May End of July Release of DRAFT technical specifications for A2A (RTA only) Release of FINAL technical specifications for A2A (RTA only) Go Live - new Claims Portal website ( Go Live - training site for web users (both RTA and EL/PL) A2A integration site available (RTA only) - support available from the beginning of July Go live - Claims Portal web interface (RTA and EL/PL) Go live - Claims Portal A2A interface (RTA only) Phase 2: A2A interface for EL/PL: Beginning of May Beginning of July End of September Release of DRAFT technical specifications for A2A (EL/PL) Release of FINAL technical specifications for A2A (EL/PL) A2A integration site available (EL/PL) - with support Go live - A2A interface (EL/PL) The current RTA Portal allows prospective users to sign up for updates on the implementation of the new Claims Portal. ( Assuming the registration process for the rebranded Claims Portal remains identical to the current system, the registration process is as follows: an organisation has to complete the Registration Pack relevant to them (which will be available on the website). This requires the selection of a System Administrator for the organisation. Once this is completed it can take up to 5 working days to be issued with a Call ID. Following this, the nominated administrator will receive log in details. The System Administrator has to accept the user 5 P a g e

6 agreement and will be the registered contact for the organisation. It is recommended that a second System Administrator is created following registration. Training accounts are supplied as part of the administration process. There is a training website which allows familiarisation with the Portal before its use. There are also a number of user guides available on the website. The timetable envisages that a training website for the rebranded Portal will become available at the end of May 2013, giving two months for users to familiarise themselves with the site before the system goes live at the end of July. Following registration, access to the Portal, if it follows the current format, will be controlled by user ID and password. The System Administrator will be responsible issuing and maintaining individual user ID s and will be the registered contact for the organisation. For the latest information on the progress of the Claims Portal see: 4. Costs following the implementation of the Portal Under the new portal a regime of fixed costs will apply. Furthermore, cases falling outside the portal will be subject fixed costs also. The fixed recoverable costs both inside and outside the portal are set out in the following tables (and can be found in the Government s response to the consultation, Extension of the Road Traffic Accident Personal Injury Scheme: proposals on fixed recoverable costs (27 February 2013), at Annexe A): 6 P a g e

7 The Government has confirmed that fixed costs will apply to EL disease claims falling within the Protocol. However, it has accepted that for EL disease claims falling outside the Protocol further consideration of the costs regime is necessary, as the currently proposed costs may not be appropriate. Accordingly, for the time being at least, those EL disease claims falling outside the Protocol will continue to be dealt with as they are currently, namely hourly rates (see the consultation response at [95]. 5. The impact of the Protocol on disease claims Type and number of claims Given the value limit of 25,000 the Protocol will apply to most NIHL and HAVS claims. We not anticipate the Protocol applying to many asbestos related claims. 7 P a g e

8 We have no accurate data as to the number / % of multiple defendant claims. Liability and limitation The benefit of claims settled under the Protocol is the claimant fixed costs. The disadvantages are that: o Limitation cannot be argued; o Diagnosis / causation must be accepted based on the C s medical evidence alone; Whilst a positive diagnosis can be validated using ABCNoise it would assume (i) the claimant s audiogram was accurate and / or there was no Non Organic Hearing Loss (NOHL), (ii) a robust diagnosis can be based on a single audiogram and (iii) wholesale acceptance of the Coles Guidelines as the appropriate diagnostic framework for NIHL. Future We anticipate that claimant solicitors will look to exclude claims from the Protocol to maximise their profit costs and recover costs on an hourly rate basis. We may well see claims inflation-with expensive hearing aid claims made in NIHL claims-to push the full liability value beyond 25,000-and / or an increase in multiple defendant claims. Disease claims are now the most financially attractive EL personal injury claims with values up to 25,000. NIHL claims make up the vast majority of such disease claims. We may anticipate that the current NIHL claims volumes will continue or increase yet further. May P a g e