CHANGES AND EXTENSION TO THE PORTAL PROPOSED OR OTHERWISE By Chris Rafferty & Colin Richmond INTRODUCTION The reforms of the RTA Portal Scheme have been relatively few to date, but are nevertheless worthy of careful note, given that such alterations profoundly affect the framework of the scheme itself. The boundaries of the Portal are stretched both horizontally, through the introduction of EL and PL claims, and vertically in respect of the upper value limit of the Protocol. 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 altered to capture a greater swathe of RTA claims. In order to achieve the upper value limit for claims entering the Portal is extended from the previous 10,000 limit to a new limit of 25,000. This will have the effect of regulating a much greater number of RTA claims, increasing the scope of the Portal to include those claimants who have 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. The Protocol applies where a claim for damages arises from a road traffic accident occurring on or after 30th April 2010 para 4.1(1). 1
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 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. The same warning exists in relation to EL and PL claims. Such an express warning is perhaps an indicator that, as expected, costs sanctions are likely to be used more frequently and robustly in relation to Protocol breaches in light of the reforms. Document Exchange Communications between parties is 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 e-mail para 5.1. This might include for example statements relating to hire charges. This applies equally to EL and PL claims. 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 will require such 2
fixed costs to be paid within 10 days of receipt of the Stage 2 settlement pack para 6.18. This applies to EL and PL claims also. It would seem that the above amendment is designed to allay concerns, predominantly from insurers, about the practice of pocketing 400.00 fixed costs from claims brought for that sole purpose, irrespective of the merits of such claims. In any event, such an amendment should encourage parties to move swiftly onto Stage 2. Medical Records and Photographs (Stage 2) The amended Protocol requires 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. These provisions are also contained within the Protocol for EL and PL claims. 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 3
The wording of this paragraph has been slightly changed in the Protocol, requiring a further report to be justified para 7.8. 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). 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 only 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 7.11. 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
1. For claims valued up to 10,000, fixed recoverable costs are to be reduced to 500. 2. 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? EL/PL REFORMS The Pre-Action Protocol for Low Value Personal Injury Claims (Employer s Liability and Public Liability Claims).is introduced which applies to most employers liability and public liability claims up to the value of 25,000. Scope The Protocol applies where either the claim arises from an accident occurring on or after 31 July 2013 or, in a disease claim, no letter of claim has been sent to the defendant before 31 July 2013. The Protocol does not apply to a number of claims, notably: where the claimant or defendant acts as personal representative of a deceased person 5
where the claimant or defendant is a protected party as defined in rule 21.1(2) in the case of a public liability claim, where the defendant is an individual ( individual does not include a defendant who is sued in their business capacity or in their capacity as an office holder) where the claimant is bankrupt; where the defendant is insolvent and there is no identifiable insurer in the case of a disease claim, where there is more than one employer defendant for personal injury arising from an accident or alleged breach of duty occurring outside England and Wales; for damages in relation to harm, abuse or neglect of or by children or vulnerable adults which includes a claim for clinical negligence for mesothelioma Some of these situations will be fairly rare, however the Protocol does make clear that claims such as mesothelioma claims, clinical negligence claims and disease claims where there is more than one defendant will not be caught by the new rules Completion of the Claim Notification Form The CNF must be sent to the Defendant s insurer, and the Defendant-Only CNF must be sent to the Defendant. The onus is on the claimant to make a reasonable attempt to identify the relevant insurer where its identity not known para 6.1(3). 6
Failure to complete CNF If the defendant pulls the claim out of the process due to the claimant providing inadequate information, the court will only award the claimant fixed costs (as if the claim had remained within the process) if it is held that the defendant was correct to do so para 6.8. Response The defendant must send to the claimant an electronic acknowledgment the next day after receipt of the CNF. The defendant must then send to the claimant an electronic acknowledgment the next day after receipt of the CNF and send the CNF to the insurer at the same time and advise the claimant that they have done so. The insurer must send to the claimant an electronic acknowledgment the next day after its receipt, and the claimant must then submit the CNF to the insurer via the Portal as soon as possible and, in any event, within 30 days of the day upon which the claimant first sent it to the defendant. The defendant must complete the Response section of the CNF ( the CNF response ) and send it to the claimant in the case of an employers liability claim, within 30 days of the step taken pursuant to paragraph 6.1; and in the case of a public liability claim, within 40 days of the step taken pursuant to paragraph 6.1. Loss of earnings In an employers liability claim, the defendant must, within 20 days of the date of admission of liability, provide earnings details to verify the claimant s loss of earnings, if any para 7.9. 7
Interim payment Where the claimant requests an interim payment of 1,000, the defendant should make an interim payment to the claimant within 10 days of receiving the Interim Settlement Pack (provided by the claimant) para 7.17. Where the claimant has requested an interim payment of more than 1,000 the defendant must pay either the full amount requested less any deductible amount which is payable to the CRU, the amount of 1,000 or some other amount of more than 1,000 but less than the amount requested by the claimant within 15 days of receiving the Interim Settlement Pack para 7.18. Submitting the Stage 2 Settlement Pack The Stage 2 Settlement Pack must comprise (para 7.30): the Stage 2 Settlement Pack Form a medical report or reports evidence of pecuniary losses evidence of disbursements (for example the cost of any medical report) any non-medical expert report any medical records/photographs served with medical reports any witness statements. The claimant should send the Stage 2 Settlement Pack 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 para 7.31. 8
Consideration of claim There is a total period of 35 days for the defendant to consider the Stage 2 settlement pack para 7.32. Where an offer is made five days or less from the end of the consideration period, there is a further five days after the end of the consideration for consideration of that offer para 7.34. Costs Profit costs payable under the Protocol for claims valued at 1,000-10,000 will be 900 in total ( 300 at Stage 1 and 600 at Stage 2). Profit costs payable under the Protocol for claims valued at 10,001-25,000 will be 1,600 in total ( 300 at Stage 1 and 1,300 at Stage 2). DRAFT TIMETABLE DATE EFFECT AREA March Release of draft technical specifications for A2A RTA only Beginning of April Beginning of May Beginning of May Release of final technical specifications for A2A Release of draft technical specifications for A2A New claims portal website to go live www.claimsportal.org.uk RTA only EL/PL only RTA and EL/PL End of May New training site for web users RTA and EL/PL End of May A2A integration site available RTA only 9
Beginning of July Release of final technical specifications for A2A and A2A integration site available with support EL/PL only End of July Claims portal web interface launched RTA and EL/PL End of July Claims portal A2A interface launched RTA only End of September New A2A interface introduced EL/PL only 10