The new Pre-Action Protocol for fast track Employers Liability and Public Liability Personal Injury Claims

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1 The new Pre-Action Protocol for fast track Employers Liability and Public Liability Personal Injury Claims

2 Introduction This guide provides an at a glance review of the new Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims. The new Protocol applies to employers liability and public liability claims valued between 1,000 and 25,000 where the accident occurred on or after 31 July 2013, and to employers liability disease claims where no letter of claim has been sent to the defendant prior to 31 July The management of Protocol claims is intended to be supported by an online portal system (the Portal), provided by Claims Portal Ltd. In other words, the Protocol sets out the process, the Portal is the means by which it is carried out. The Protocol poses a number of key challenges for organisations. We aim to assist you in demystifying such challenges by providing hints and tips to maximise your claims handling procedure and help utilise the opportunities of the Protocol. This includes with regard to a new fixed recoverable costs regime. There are costs consequences of a claim leaving the Protocol. The economics of keeping claims within the Protocol are persuasive - but not always. The original Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents was implemented on 30 April Three years on, having survived various trials and tribulations, the rules have been updated and extended to apply to RTA claims valued between 1,000 and 25,000. Our review of the new RTA Protocol can be found in our separate booklet. We will continue to monitor the reforms and share with you what we find. Tracy Head Partner Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214)

3 Contents Topic Page number 1 THE EL/PL PROTOCOL 2 2 STAGE 1 - NOTIFICATION AND RESPONSE (EL CLAIMS) 3 3 STAGE 1 - NOTIFICATION AND RESPONSE (PL CLAIMS) Basic points Critical points 6 4 MEDICAL REPORTS Basic points Critical points 8 5 STAGE 2 - SETTLEMENT PACK Basic points Critical points Interim payments Critical points 14 6 STAGE 3 - PROCEEDINGS PACK Basic points Critical points 16 7 FIXED RECOVERABLE COSTS Claims within the new Protocol Stage 3 - Protocol costs Critical points Claims which exit the new Protocol 19 8 EL/PL PROTOCOL: OTHER BASIC POINTS Children Claimant s reasonable belief of value of claim CNF Costs of expert medical and non-medical reports and specialist legal advice Failure by claimant to provide adequate mandatory information on CNF Limitation period Litigants in person Part Specialist legal advice Success fees Withdrawal of offer after consideration period 22 9 FRAUD Casualty key fraud indicators HINTS AND TIPS CONCLUSION 27 1

4 1. The EL/PL Protocol The new Protocol applies to EL/PL claims valued between 1,000 and 25,000 where the accident occurred on or after 31 July 2013, and to employers liability disease claims where no letter of claim has been sent to the defendant prior to 31 July The following claims are excluded from the new Protocol: Public liability claims against an individual. Employers liability disease claims with more than one defendant. All public liability disease claims. Where the defendant or claimant is deceased or a protected party. Where the accident or breach of duty occurred outside England and Wales. Abuse, mesothelioma and clinical negligence claims. Where the claimant is bankrupt. Where the defendant is insolvent and uninsured. Claims can subsequently exit the Protocol in the following cases: Damages value increases above 25,000 (before interest). The defendant considers that the claim is worth less than 1,000. Liability is denied. Contributory negligence is alleged. Fraud is alleged. Upon a failure to meet certain portal deadlines. The defendant considers that insufficient information has been provided by the claimant on the claim notification form (CNF). The defendant withdraws their admission of causation. Where a party withdraws an offer made after the end of the Stage 2 consideration period. The reference to days in this guide means business days. 2

5 2. Stage 1 - EL claims Defendant s insurer unknown? Defendant s insurer known? Or defendant not known to have insurance cover? CNF is sent to insurer s prescribed Portal address and defendant only CNF (DCNF) sent to defendant CNF sent to defendant s registered office/principal place of business via first class post. No DCNF is required Insurer must send an electronic acknowledgment the next business day after receipt Defendant must send an electronic acknowledgment on next business day after receipt and send CNF to insurer Defendant must confirm to claimant that insurer has been notified. Claimant must then submit CNF to the defendant s insurer via Portal ASAP and within 30 days The insurer has 30 days (from the date the claimant sent the CNF) to investigate the claim and complete the response section of the CNF and send it to the claimant Failure to comply = claim exits Protocol Liability denied? Insurer must give brief reasons for their denial in response section of CNF Claim exits Protocol Liability admitted? Claim moves to Stage 2 Insurer has 20 days to provide earnings information Liability admitted but contributory negligence alleged? Claim exits Protocol 3

6 3. Stage 1 - PL claims Defendant s insurer unknown? Defendant s insurer known? Or defendant not known to have insurance cover? CNF is sent to insurer s prescribed Portal address and defendant only CNF (DCNF) sent to defendant CNF sent to defendant s registered office/principal place of business via first class post. No DCNF is required Insurer must send an electronic acknowledgment the next business day after receipt Defendant must send an electronic acknowledgment on next business day after receipt and send CNF to insurer Defendant must confirm to claimant that insurer has been notified. Claimant must then submit CNF to the defendant s insurer via Portal ASAP and within 30 days The insurer has 40 days (from the date the claimant sent the CNF) to investigate the claim and complete the response section of the CNF and send it to the claimant Failure to comply = claim exits Protocol Liability denied? Insurer must give brief reasons for their denial in response section of CNF Claim exits Protocol Liability admitted? Claim moves to Stage 2 Liability admitted but contributory negligence alleged? Claim exits Protocol 4

7 3.1 BASIC POINTS The claimant should complete all boxes in the CNF marked as mandatory and make a reasonable attempt to complete the rest. The only non-mandatory field on both the EL and PL CNF is the defendant s address. If the defendant considers that inadequate mandatory information has been provided, that is a valid reason for the claim to exit the Protocol. If the claim exits the Protocol because of the claimant s failure to complete the CNF properly, there is a good argument that the claimant should only be entitled to Protocol costs if the claim subsequently settles outside the Protocol before proceedings commence. It may therefore be sensible to argue that the claim should exit the Protocol for this reason. In both EL and PL claims the claimant must make a reasonable attempt to identify the defendant s insurer. For EL matters the claimant must carry out a search through the Employers Liability Tracing Office (ELTO). If the claimant is unrepresented, on receipt of the CNF the defendant must explain to the claimant the period within which a response is required by, and that the claimant may obtain independent legal advice. If a claim exits the Protocol it will continue under the Pre-Action Protocol for Personal Injury Claims and the CNF will stand as the letter of claim (unless insufficient information has been provided). The defendant will then have three months from the date the CNF was acknowledged to investigate liability and provide full disclosure in the event that liability is denied. Claims which exit the Protocol cannot re-enter the Portal process. The consequence of failure to provide next day acknowledgement of the CNF is unclear. Case law from before the time of the extended Protocol held that failure to provide next day acknowledgement does not mean the claim exits the procedure automatically or give the claimant the right to elect to discontinue without being at risk as to costs. Until such time as the court provides clarification, should the claimant discontinue and commence Part 7 proceedings, he maybe at risk of his costs being restricted to the Protocol fixed costs regime. The consequence of the claimant s failure to resubmit the CNF to the insurer within 30 days where it is first issued to the defendant is also unclear. 5

8 3.2 CRITICAL POINTS Failure to comply with the deadlines around investigating and making a decision on liability will result in the claim leaving the Protocol. It would be best practice to obtain the claimant s BACs details from the offset. This should ensure that the claimant receives any payments within the specified timeframes. An admission of liability under the Protocol means that the defendant admits a breach of duty occurred. The defendant thereby admits that they caused the claimant loss and damage, the nature and extent of which is not admitted. The defendant must have no defence under the Limitation Act If liability is denied or contributory negligence is alleged the claim will exit the Protocol. Therefore, a limited admission such as we admit a breach of duty but are unable to admit that the accident occurred as alleged or admitting primary liability will cause the claim to exit the Protocol. An admission that the breach of duty caused the claimant some loss can later be withdrawn up until the end of the initial consideration period at Stage 2. This is because at Stage 1 (when making the admission) you will not have been served with any medical evidence and it may transpire that in fact the claimant did not sustain any injury as a result of the accident, or the medical records reviewed may cast doubt over whether the accident even took place. After that time period a defendant can only withdraw an admission that the claimant sustained a loss with the consent of the other party or with permission of the court if proceedings have been issued. If a breach of duty is admitted, for Protocol savings to be made, it will be important to consider whether alleging contributory negligence is likely to be successful or worthwhile, taking into account the value of the claim. Generally speaking, it will require a successful agreement of 15 to 25 per cent contributory negligence to make dropping out of the Protocol economically worthwhile on smaller claims. This deceases to under 10 per cent contributory negligence for claims worth over 11,000. Whilst we acknowledge the commercial view of not alleging contributory negligence in some cases due to the cost to benefit ratio, we are alive to the fact that in some cases there may be good reason to argue that contributory negligence should apply e.g. to send a message to an insured s workplace that certain employee practices are not acceptable. 6

9 If Stage 1 costs are not paid within 10 working days of receipt of the Stage 2 settlement pack, the claimant can give notice of his intention to exit the Protocol. However, if the claimant fails to give notice within 10 days of the expiry of the specified period the claim will continue under the Protocol. The insurer must before the end of Stage 1 apply for a CRU certificate. This ensures that the insurer has a valid CRU certificate when the matter reaches Stage 2. Best practice would be to apply for a CRU certificate after acknowledging the CNF. Given the tight Protocol timescales, there is unlikely to be an opportunity to request a review of the CRU certificate and if the CRU figure is disputed it will probably be better to satisfy CRU in full and appeal later. 7

10 4. Medical reports 4.1 BASIC POINTS The medical report must be provided by the claimant with the Stage 2 settlement pack. There is no fixed timescale for the claimant to obtain a medical report. It is anticipated that most claims will be resolved with just one medical report, but additional reports may be obtained where the injuries require reports from more than one medical discipline. The claimant must explain in the Stage 2 settlement pack why additional reports were obtained. The Stage 2 settlement pack should be sent to the defendant 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. 4.2 CRITICAL POINTS There is no obligation for the claimant s expert to consider the claimant s medical records, but the expert should confirm whether they consider the medical records to be relevant to the claim and whether they have been reviewed. The claimant must disclose any medical records which the expert considered relevant, along with any photographs of the claimant s injury relied on. Subsequent medical reports must be justified, for example: Where the expert recommends further time before providing a final prognosis. The claimant is receiving continuing treatment. The claimant has not recovered as expected in the original prognosis. The claimant may obtain a non-medical report if it is reasonably required to value the claim. If a final medical report is not served by the claimant with the Stage 2 settlement pack, the parties should agree for the claim to be stayed within the Protocol and reinstated once a final report has been received. If a stay is agreed the claimant can apply for an interim payment. 8

11 5. Stage 2 - Settlement pack The claimant provides the insurer with the Stage 2 settlement pack to include medical report(s) with any medical records/photographs served with reports, specialist legal advice, schedule of special damages with supporting documents, any witness statements, evidence of disbursements and offer of settlement The insurer has 10 working days to pay Stage 1 costs (unless claimant is a child) after receipt of the Stage 2 settlement pack Failure to comply = claim exits Protocol The insurer has a total consideration period of 35 days to consider Stage 2 settlement pack. If the claimant s offer is accepted the insurer pays damages and Stage 2 costs and disbursements within 10 days of acceptance. Total consideration period* as follows: 15 days initial consideration period to consider Stage 2 settlement pack and either accept claimant s offer or make a counter offer: Failure to comply = claim exits Protocol unless extension agreed Following a counter offer the insurer has 20 days negotiation period to negotiate a final settlement: Failure to comply = claim exits Protocol unless extension agreed Claimant s offer accepted? Insurer has 10 days to pay damages and Stage 2 costs Counter offer accepted? Insurer has 10 days to pay damages and Stage 2 costs If no settlement reached the claim proceeds to Stage 3 *The 35 day total consideration period can be extended by the parties agreeing to extend either the initial consideration period or negotiation period, or both. 9

12 5.1 BASIC POINTS The claimant must check the factual accuracy of his medical report(s) as he will not be able to amend these once submitted. Within 15 days of the claimant confirming that the report is factually correct the report should be sent to insurers with the Stage 2 settlement pack. The defendant should identify in the Stage 2 settlement pack any expert report(s) or specialist legal advice for which they will not pay and explain why they will not pay for that report or advice. This could include, for example, where specialist legal advice is obtained in a low value matter (usually under 10,000) which is considered unreasonable given the simplicity of the issue in question, or where an irrelevant medical report is obtained. When making a counter offer the defendant must propose an amount for each head of damage and must explain why they have offered less than the claimant s offer. A counter offer must state the type and amount of any CRU deductible benefits. If within the 15 day initial consideration period (or any agreed extension) the defendant withdraws its admission that the claimant sustained some loss, or considers that if proceedings were started the matter would be allocated to the small claims track, the claim will exit the Protocol. Therefore, on receipt of the Stage 2 settlement pack it is important to check within the 15 day initial consideration period that: The claim is likely to be a fast track matter i.e. the claimant is likely to recover 1,000 or more for pain, suffering and loss of amenity, and There are no concerns that the accident in question caused the claimant some loss. Non-medical expert reports are allowed if reasonably required to value the claim. This is unlikely to be the case for any claims worth under 10,000. The Part 36 indemnity provisions do not apply in the Protocol. Therefore, if the claim does exit the Protocol, it is likely that the claimant will make a Part 36 offer as soon as possible. This will entitle them to recover a 10 per cent uplift on damages should they later receive judgment of equal or higher value (if the claimant entered into a conditional fee agreement on or after 1 April 2013). 10

13 5.2 CRITICAL POINTS Failure to comply with the deadlines within the consideration period will result in the claim leaving the Protocol unless an extension has been agreed. The details of the sanctions against other failures appear uncertain. This includes a failure to provide details of loss of earnings in an EL claim or a failure to pay settlement monies within 10 days of agreed settlement. The 35 day total consideration period can be extended by the parties agreeing to extend either the initial consideration period or negotiation period, or both. Within the 15 day initial consideration period, when reviewing the medical evidence it is important to consider causation and value, and if necessary withdraw an admission that the accident in question caused the claimant a loss or advise the claimant that you consider that the matter would usually be allocated to the small claims track. Where a party makes an offer five days or less before the end of the total consideration period (including any agreed extension) there will be a further period of five days after the end of the period for the relevant party to consider the offer. During this period no further offers can be made by either party. Tactically the claimant may make a counter offer on the last day of the total consideration period (i.e. day 34 unless an extension has been agreed) to give the defendant minimal time to consider the offer and proceed to Stage 3. Where a party withdraws an offer made in the Stage 2 settlement pack after the total consideration period, or further period if an extension is agreed, the claim will exit the Protocol and the claimant may issue Part 7 proceedings. If settlement is reached the claimant must receive their damages, costs and disbursements within 10 days of settlement being agreed. Where the parties subsequently agree settlement for more than the sum offered by the defendant during the total consideration period or further consideration period after the court proceedings pack has been sent to the defendant, but before Stage 3 proceedings have been issued, the defendant must pay damages, costs and disbursements under Stage 2 plus fixed late settlement costs in CPR (Stage 3 Type A fixed costs). 11

14 If a party withdraws an offer made at Stage 2 after the total consideration period or further consideration period, the claim will exit the Protocol and the claimant may start Part 7 proceedings. If settlement is not reached, the insurer must ensure that the claimant receives the full amount of their best offer (less any CRU) within 15 working days of receiving the court proceedings pack, together with Stage 2 costs and disbursements. It will therefore be important to obtain the claimant s payment details at the offset. The defendant will have 30 working days to make this payment if there is less than 10 days on the current CRU certificate. If this is the case the defendant must request a new CRU certificate and advise the claimant that they have done so. 12

15 5.3 INTERIM PAYMENTS Following an admission the claimant can request an interim payment of 1,000. The claimant sends the interim settlement pack to the defendant with any recommendation that subsequent medical report(s) are justified together with evidence of pecuniary losses and disbursements Where an interim payment of 1,000 is requested the defendant must pay the interim payment within 10 days of receiving the interim settlement pack The claimant has requested an interim payment over 1,000? If so the claimant must specify the heads of damage claimed and reason for request The defendant must make an interim payment 1,000 or greater. However, if the defendant pays less than the amount requested, the defendant must explain why the full amount has not been paid Defendant has 15 days to pay an interim payment greater than 1,000 Where: The defendant fails to pay the claimant within the prescribed timeframe ( 1,000 within 10 days, over 1,000 within 15 days) The defendant fails to pay at least 1,000 where more has been requested The claimant is not content with amount paid where more than 1,000 was requested The claimant can start Part 7 proceedings and apply for an interim payment. 13

16 5.4 CRITICAL POINTS There is no opportunity for the defendant to challenge the claimant s entitlement to a 1,000 interim payment if the claim is to remain within the Protocol. The claimant can start Part 7 proceedings and apply for an interim payment if he is dissatisfied with the interim payment made by the defendant. However the court will order the defendant to pay no more than Stage 2 fixed costs if it does not award the claimant an interim payment greater than that offered by the defendant. The claimant must give the defendant notice of his intention to start Part 7 proceedings within 10 days of the expiry of the prescribed time limit for the interim payment to be paid ( 1,000: 10 days, 1,000 or more: 15 days). If the claimant fails to provide notification the claim will remain in the Protocol. Where an interim payment is requested for a child, Part 7 proceedings are required. Any payments to a child require court approval. Where the defendant does not have a CRU certificate that will remain in force for at least 10 days from date of receiving the interim settlement pack, he should apply for one as soon as possible, advise the claimant of this and make the interim payment no more than 30 days from receipt of the interim settlement pack. Where the claim is valued at more than 10,000 the claimant may request more than one interim payment. 14

17 6. Stage 3 - Proceedings pack Claimant sends court proceedings pack to defendant to include medical report(s), schedule of loss with supporting documents, defendant s responses and final offer/counter offer The defendant has five days to state if form is not compliant After five days the claimant submits the claim to the court for an oral or paper hearing 6.1 BASIC POINTS Where the defendant opposes the claim because: The claimant has not followed the procedure set out in the Protocol; and/or The claimant has filed and served additional or new evidence with the claim form that had not been provided under the Protocol, the rules provide for the claim to be dismissed. The claimant can then start Part 7 proceedings (although there will most likely be cost consequences for the claimant). A party may withdraw an offer at Stage 3, but only with the court s permission (there will need to be good reason ). The claim will then no longer continue under the Protocol and the court will give directions for the future conduct of case. 15

18 6.2 CRITICAL POINTS If the insurer considers Part A and Part B of the Stage 3 form do not comply with the Protocol they have five working days to notify the claimant. The Part A and Part B forms cannot contain anything that was not raised in the Stage 2 settlement pack. Where a settlement is not agreed, the claimant sends the court proceedings pack to the insurer with details of both parties final offers. The insurer has five days to check the accuracy and provide any comments to the claimant. After 10 days from sending the court proceedings pack to the insurer, the claimant must file the court proceedings pack with the court and make an application for a quantum hearing. Details of both parties offers will be sent to the court in a sealed envelope. The insurer will receive notification of the claim and must file acknowledgement of service within 14 days. There is a presumption that the hearing will be a paper hearing unless either party requests an oral hearing. Final offers will remain in a sealed envelope until the judge makes his decision. The court will give 21 days notice of the determination date. Once the decision is made, if the claimant wishes to appeal he will have 21 days to lodge an appeal if it was an oral hearing, or 23 days if it was a paper hearing. 16

19 7. Fixed recoverable costs 7.1 CLAIMS WITHIN THE NEW PROTOCOL Stage 1 Stage 2 Stage 1 & 2 total Stage 3 paper hearing (Type A) Stage 3 oral hearing (Type B) If claim goes to oral hearing and C recovers more than D offer then C recover: A + 3B Fixed fees on claim valued 1,000-10,000 Fixed fees on claim valued 10,001-25, , ,300 1, , STAGE 3 PROTOCOL COSTS Type Amount Type A This is the legal representative s fixed costs for the hearing. 250 Type B This is the additional advocate s costs for conducting a Stage 3 hearing. Type C This is for specialist advice required to value to the claim. This will usually be where the claim is valued at over 10,

20 7.3 CRITICAL POINTS The fixed costs included in the tables above are exclusive of VAT. The claimant is entitled to a 12.5 per cent uplift on the above Stage 1, Stage 2 and Stage 3 Type A costs where the claimant lives or works and instructs a solicitor in London, or the following county court districts: Barnet, Bow, Brentford, Central London, Clerkenwell and Shoreditch, Edmonton, Ilford, Lambeth, Mayor s and City of London, Romford, Wandsworth, West London, Willesden, Woolwich and (outside London) Bromley, Croydon, Dartford, Gravesend, Uxbridge. 18

21 7.4 CLAIMS WHICH EXIT THE NEW PROTOCOL Where claims leave the extended Protocol process and move into the Pre-Action Protocol for Personal Injury Claims, a fixed cost regime also applies. Whether the claim settles preproceedings or the claimant issues proceedings, recoverable costs are set on the basis of the value of the claim at issue, based on a fixed value plus a percentage of damages and the stage at which the claim settles (before or after issue). Pre - issue Issued 1,000-5,000 5,001-10,000 10,001-25,000 Post issue, pre-allocation Post allocation, pre-listing Post listing, pre-trial Trial advocacy fee (subject to claim value) EL claims Fixed costs PL claims Fixed Costs % of damages % of damages 1, % of damages over 5,000 2, % of damages over 10,000 1, % of damages over 5,000 2, % of damages over 10,000 2, % of damages 2, % of damages 3, % of damages 3, % of damages 4, % of damages 3, % of damages 500 (to 3K) 710 ( 3-10K) 1,070 ( 10-15K) 1,705 (> 15K) 500 (to 3K) 710 ( 3-10K) 1,070 ( 10 15K) 1,070 (> 15K) 19

22 8. EL/PL Protocol: other basic points 8.1 CHILDREN The claimant's solicitor must ensure that the person providing instructions on behalf of the child is an appropriate person and the CNF must state if claim is for an injury to a child. Where an interim payment is required for a child, Part 7 proceedings must be issued. Court approval is required of any settlement agreed in relation to a child. 8.2 CLAIMANT S RESONABLE BELIEF OF VALUE OF CLAIM Where the claimant reasonably believes the claim is valued between 1,000 and 25,000, if it subsequently becomes apparent claim is worth less than 1,000 the claimant is still entitled to Stage 1 and (where relevant) Stage 2 fixed costs and the claim will drop out of the Protocol. Be aware of claimants solicitors seeking to put what are clearly small claims into the Protocol. That being said, it will rarely be economic for insurers to challenge borderline small claims. 8.3 CLAIM NOTIFICATION FORM (CNF) On receipt of a CNF it will be important to: Ensure the mandatory fields have been completed by the claimant. Form a rough opinion of the value of the claim. Ensure the claim is not limitation barred. Check the claimant is not insolvent. Check the defendant is not insolvent. Check you are the correct insurer for the defendant. If the CNF is compliant, register the matter with CRU as soon as possible. If CNF is compliant, obtain the claimant s payment details as soon as possible. Contact the insured and advise them of the 30 day or 40 day deadline to provide response to claim. For employers liability claims, request from the insured the claimant s earnings information. 20

23 8.4 COSTS OF EXPERT MEDICAL AND NON-MEDICAL REPORTS AND SPECIALIST LEGAL ADVICE Where the claimant obtains more than one expert report or advice from a specialist solicitor or counsel: The defendant may at the end of Stage 2 refuse to pay; or The court may at Stage 3 refuse to allow these. 8.5 FAILURE BY CLAIMANT TO PROVIDE ADEQUATE MANDATORY INFORMATION ON CNF Where the defendant considers that inadequate mandatory information has been provided, this provides a valid reason for the defendant to decide the claim should exit the Protocol. If the court agrees then it should order that the defendant pay no more than the fixed costs and disbursements the claimant would have recovered pursuant to the Protocol. 8.6 LIMITATION PERIOD Where limitation is due to expire, the claimant can issue Part 7 proceedings and apply for a stay whilst the parties then take steps to follow the Protocol. 8.7 LITIGANTS IN PERSON The fixed fees are only payable where the claimant has a legal representative. 8.8 PART 36 Indemnity provisions do not apply under the new Protocol. Tactically, the claimant is likely to make a Part 36 offer as soon as possible if the claim exits the Protocol. 21

24 8.9 SPECIALIST LEGAL ADVICE In most cases it is expected that the claimant s legal representative will be able to value the claim. In some cases with a value of more than 10,000, an additional advice from a specialist solicitor or counsel may be justified where it is reasonably required to value the claim. It is expected that claimants solicitors will attempt to claim for additional specialist advice on most claims valued over 10,000 as it is unlikely to be economical for a defendant to challenge the justification for providing the specialist advice SUCCESS FEES Success fees for EL/PL claims submitted via the Protocol are not recoverable from a losing defendant. However, in EL disease claims where the claimant entered into a conditional fee agreement before 1 April 2013 which provides for a success fee, a success fee may be recoverable. This however is unlikely, as claimants solicitors who entered into a CFA prior to 1 April 2013 will most probably have sent a letter of claim before 31 July 2013 to avoid the need to follow the new Protocol WITHDRAWAL OF OFFER AFTER CONSIDERATION PERIOD If a party withdraws an offer made in the Stage 2 settlement pack after the consideration period or further consideration period the claim will exit the Protocol and the claimant may start Part 7 proceedings. 22

25 9. Fraud The extended Protocol makes an attempt to introduce counter-fraud safeguards and thereby overcome the scope for fraudulent claims which the tight timelines, in particular, can create. These safeguards include: Mandatory provision of full particulars of claim, including personal details of the claimant. Disclosure by the claimant s solicitors of the source of their work, in order to help identify accident management companies. Although this is not mandatory, failure to answer this question may give insurers cause for suspicion. Requirement at Stage 2 for the claimant to check the medical report for factual accuracy before sending to the insurer. There will be no further opportunity for the claimant to challenge the report. It is hoped that it will be more difficult for the claimant to provide a convincing explanation in the event that inconsistencies are revealed after the medical report has been disclosed. If there is any concern that a claim is fraudulent, it is advisable to consider removing the claim from the Protocol, rather than risk being pressured into making the wrong decision. Please see the key fraud indicators we have created on pages 24 and 25 to assist in your decision making. 23

26 9.1 CASUALTY KEY FRAUD INDICATORS Name Reference Date Area to consider Accident Fraud Indicator No contemporaneous report of incident Unlikely / implausible accident circumstances Unlikely / implausible accident location No independent witnesses Witnesses (suspected) linked / known to claimant Accident occurred in remote / isolated area Relevant accident history Claimed losses not compatible with claimant lifestyle Injuries entirely subjective Claimant some distance from own solicitor / accident claims company involvement Claimant eager to compromise / seeks early settlement Claimant has financial problems Quick / early instruction of solicitor Self-serving medical attention 24

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