1 QBE European Operations Portal extension Guidance document June 2013 Ministry of Justice extension to the claims protocols Maximising Opportunities
2 Portal extension Guidance document June 2013 Ministry of Justice extension to the claims protocols Maximising Opportunities Contents MOJ portal extension effective 31 July Fixed costs 3 Contributory negligence 4 Hints and tips 5 QBEs approach 6 Portal process overviews 7 Disclaimer 9
3 1 The Lord Justice Jackson Reforms on civil litigation costs and the extension of the Ministry of Justice (MOJ) claims portal were due to be implemented simultaneously. This did not materialise and the portal extension will now come into effect 31 July The reforms brought about by the implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) became effective on 1 April They address disproportionate costs in civil litigation and include the following changes. After the event (ATE) insurance premiums are no longer recoverable from defendants Success fees in conditional fee agreements (CFAs) are no longer recoverable from defendants A 10% uplift on general damages (injury element) Qualified One Way Costs Shifting (QOCS) defendants will now pay most of their own costs even if a claim is successfully defended with exceptions for fraud and failure to beat a defendant s Part 36 offer (up to the value of damages awarded) A 10% additional penalty on damages for awards up to 500,000 (reducing to 5% for awards between 500,000 and 1,000,000) where the defendant does not accept and fails to better a claimant s Part 36 offer A proportionality test when costs are assessed by the court Costs budgeting in multi-track cases whereby the court will seek to control legal costs at an early stage Case management by Judges who will be stricter about delays and imposing court sanctions The banning of referral fees.
4 2 MOJ portal extension effective 31 July 2013 On 31 July 2013, the Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims will be introduced alongside a new portal to deal with appropriate employers and public liability claims up to 25,000. At the same time, the existing motor claims portal will be extended to cover claims worth up to 25,000 but the liability response period will remain 15 days for motor claims. The portal extension will see all employers and public liability claims valued from 1,000 up to 25,000 and with an accident date on or after 31 July 2013 (letter of claim on or after 31 July 2013 for disease claims) being transacted via an online electronic portal with the following exclusions: Public Liability (PL) claims against an individual Claims under 1,000 or over 25,000 in value Employers Liability (EL) disease claims with more than one defendant All PL disease claims Where defendant or claimant is deceased or a protected party An accident or breach of duty outside England and Wales Abuse claims, mesothelioma, clinical negligence Where the claimant is bankrupt Where the defendant is insolvent and uninsured. In addition to the above, a claim which starts in the portal may exit if: The damages value increases above 25,000 The damages value falls below 1,000 Liability is denied or contributory negligence alleged Fraud is alleged There is a failure to meet the following deadlines: 10 working days for an insurer to pay stage 1 costs after receipt of claimant s medical report/offer 15 working days for an insurer to respond to claimant s settlement offer 20 working days for an insurer to conclude quantum negotiations 20 working days for a defendant to provide earnings information following an admission of liability 30 working days to admit liability for EL claims 40 working days to admit liability for PL claims. Remember the clock starts ticking the first business day after the information is sent to the insurer/defendant so if the claims notification form (CNF) goes directly to the defendant the timeline begins the following working day and not the day after it is then sent to the insurer.
5 3 Fixed costs The benefits of keeping a claim in the portal are low fixed recoverable costs: Claim type Claims of 1k - 10k Claims of 10k - 25k Stage 1 Stage 2 Total Stage 1 Stage 2 Total RTA EL / PL ,300 1,600 Stage 3 costs for all claim types and value are: Paper Hearing and Oral Hearing For claims with damages valued between 1,000 to 25,000 that fall out of the portal a fixed costs regime (FCR) will be in place which sets costs considerably higher than those inside the portal. Recoverable costs are set on the basis of the value of the claim at issue, based upon a fixed value plus a percentage of damages, and the stage in the process at which the claim settles e.g. pre or post litigation. These predictive costs are up to six times more expensive than portal costs if the case proceeds to litigation. For example, the new base costs for an employers liability claim worth 25,000 would increase from 2,100 maximum to 13,430 if settled at a hearing. The revised fixed fees for road traffic accident (RTA) cases between 1,000 and 10,000 in value settling within the scheme will be payable on all cases where the CNF was submitted after 30 April. The current stage 1 and 2 fixed fees of 1,200 will continue to be payable on cases where the CNF is submitted before 30 April. Where a claim drops out, the current motor predictable costs and/or hourly rate regimes will apply until the wrap around predictable costs regime comes in on 31 July 2013 (see tables overleaf). The full table of costs for EL, PL and RTA claims, both inside and outside of the portal process, may be viewed at part45-fixed-costs.
6 4 Contributory negligence The cost implications of allowing a claim to exit the portal are particularly apparent when considering arguments of contributory negligence. The below table and graphs highlight the tipping points where it becomes more expensive to argue contributory negligence rather than to admit liability within the portal. Employers liability Contributory Negligence Tipping Points Contributory Negligence Award Public liability Contributory Negligence Award ,000 2,500 5,000 7,500 10,000 15,000 20,000 25,000 Damages award EL Tipping points - All settled pre-litigation EL Tipping points - 20% settled in litigation Contributory Negligence Tipping Points 1,000 2,500 5,000 7,500 10,000 15,000 20,000 25,000 Damages award EL Tipping points - All settled pre-litigation EL Tipping points - 20% settled in litigation Damages value EL 1,000 2,500 5,000 7,500 10,000 15,000 20,000 25,000 Costs if claim settles in Portal 1,630 1,630 1,630 1,630 1,630 2,670 2,670 2,670 Costs if claim settles at first post-issue stage 4,006 4,306 4,806 5,306 5,806 6,806 7,806 8,806 Tipping points - All claims settled pre-litigation 24% 20% 19% 19% 18% 11% 10% 10% Tipping points - 20% settled in litigation1 66% 37% 28% 25% 23% 14% 13% 13% Damages value PL 1,000 2,500 5,000 7,500 10,000 15,000 20,000 25,000 Costs if claim settles in Portal 1,630 1,630 1,630 1,630 1,630 2,670 2,670 2,670 Costs if claim settles at first post-issue stage 3,765 4,028 4,465 4,903 5,340 6,215 7,090 7,965 Tipping points - All claims settled pre-litigation 24% 20% 19% 19% 16% 9% 10% 10% Tipping points - 20% settled in litigation1 62% 35% 26% 24% 21% 12% 12% 12% General notes: All costs include: VAT, disbursements at 550 where damages below 10k, disbursements at 1,100 to include expert evidence and specialist legal advice fee where damages over 10k. 1Assumes across a portfolio of claims that of those falling outside of the portal process, 20% settle in litigation.
7 5 Hints and tips Prompt reporting of claims and early supply of all relevant accident documentation is essential in order to enable prompt liability decisions and compliance with the very tight portal timescales. If the portal timescales are not complied with then claims will not be kept within the portal and the opportunity for significant costs savings will be lost. By following the simple advice below you will help maximise the opportunities presented by the reforms: Carry out proactive and thorough investigation of accidents Retain accident and investigation documentation in an organised way Make your insurer details easily accessible Ensure all your locations are on the look out for CNFs and know what to do upon receipt Acknowledge CNFs immediately to the claimant s solicitor and notify your insurer at the same time, preferably by When notifying QBE of a claim provide points of contact and details for investigation purposes Notify your insurer pre-claim of accidents which you believe are likely to give rise to a claim In addition, for those organisations who process your own low value personal injury claims you should register with the portal and submit a structure to allow new claim portal notifications to be sent to your organisation directly. You may also wish to ensure that your claim handling agents have similarly registered. For more information on registering with the portal please visit: For more information on the low value injury pre-action protocols and associated documents please click on the bullets below or visit: civil-justice-reforms/personal-injury-claims/ extending-the-road-traffic-accidentpersonal-injury-scheme Draft protocols EL CNF EL Defendant only CNF PL CNF PL Defendant only CNF Disease CNF Stage 2 Settlement Pack Interim Settlement Pack Court Proceedings Pack Medical Report Form. Ensure key personnel are aware of the changes and timescales Work closely with your insurer, broker and claim handling agents to develop an efficient process Respond promptly and fully to any requests for information or site investigation by QBE Develop standardised acknowledgements.
8 6 QBEs approach In order to ensure that we are fully prepared and ready to take advantage of the opportunities presented by the civil justice reforms QBE has: Embedded the new timescales in our claims handling processes Made our claims processes more proactive and efficient Ensured panel loss adjusters are working to the new timescales Implemented more robust fraud identification procedures Ensured a disciplined approach to liability decision making and contributory negligence arguments in accordance with our philosophies Instigated more monitoring and performance review procedures to ensure high levels of customer service and quality standards are maintained Introduced new technology to enable even more efficient claims handling Initiated a review of all claims handling arrangements with policyholders to identify where these might be improved to best operate within the new claims regimes Kept policyholders and brokers updated on the reforms via presentations, workshops and briefing documents. For access to our past updates and to register for updates in the future please visit:
9 7 Portal process overviews Stage 1 Process flow One day CNF Issued through portal to insurer CNF Issued to defendant (via portal or by post) One day CNF received CNF received One day 30/40 days (EL/PL) Insurer acknowledges to claimant Defendant admits liability1 Defendant acknowledges to claimant and sends to insurer Claimant resubmits claim through portal to insurer One day 1Defendant has 20 days from this point to provide earnings information (EL) Yes No Stage 2 Claim exits portal
10 8 Stage 2 Process flow 10 business days Stage 2 settlement pack received including medical evidence and schedule of special damages2 Pay stage 1 costs 15 days 35 business days (15+20)3 No Offer accepted? Make counter offers Yes 20 business days Offer accepted? Yes Pay damages and stage 2 costs and disbursements No Stage 3 Failure to meet any of the deadlines shown on this flow results in the claim exiting the portal 2 Where a subsequent medical report or non-medical expert report is needed then the parties should agree to stay the process in the protocol for a suitable period. The claimant may then request a 1,000 interim payment (more if reasonable pecuniary losses in excess are requested) and this must be paid by the defendant within 10 working days. 3 Where a party makes an offer 5 days or less before the end of the total consideration period (including any extension to this period), there will be a further period of 5 days after the end of the total consideration period for the relevant party to consider that offer. During this period no further offers can be made by either party.
11 9 Disclaimer This publication has been produced by QBE Insurance (Europe) Ltd ( QIEL ). QIEL is a company member of the QBE Insurance Group. Readership of this publication does not create an insurer-client, or other business or legal relationship. This publication provides information about the law to help you to understand and manage risk within your organisation. Legal information is not the same as legal advice. This publication does not purport to provide a definitive statement of the law and is not intended to replace, nor may it be relied upon as a substitute for, specific legal or other professional advice. To the fullest extent permitted by law, QIEL and the QBE Group disclaim any responsibility or liability for any loss or damage suffered or cost incurred by you or by any other person arising out of or in connection with you or any other person s reliance on this publication or on the information contained within it and for any omissions or inaccuracies. QBE Insurance (Europe) Limited and QBE Underwriting Limited are authorised and regulated by the Financial Services Authority. QBE Management Services (UK) Limited and QBE Underwriting Services (UK) Limited are both Appointed Representatives of QBE Insurance (Europe) Limited and QBE Underwriting Limited. QIEL has acted in good faith to provide an accurate publication. However, QIEL and the QBE Group do not make any warranties or representations of any kind about the contents of this publication, the accuracy or timeliness of its contents, or the information or explanations given. QIEL and the QBE Group do not have any duty to you, whether in contract, tort, under statute or otherwise with respect to or in connection with this publication or the information contained within it. QIEL and the QBE Group have no obligation to update this report or any information contained within it. QBE European Operations Plantation Place 30 Fenchurch Street London EC3M 3BD tel +44 (0) /QBE/MOJExtensionToClaimsProtocols/MaximisingOpportunities/June2013 QBE Insurance (Europe) Limited, QBE Re (Europe) Limited and QBE Underwriting Limited, all of which are authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority, are part of QBE European Operations, a division of the QBE Insurance group.