Damage Claims Portal and Online Civil Money Claims service
Could using the Damages Claims Portal cost defendants more?
Previous DCP updates
Could using the Damages Claims Portal cost defendants more?
In our last update we reflected on how the Damages Claim Portal (“DCP”) and Online Civil Money Claims Portal (“OCMC”) are beginning to change how legal representatives, clients and insurers deal with litigation. We commented that an increase in costs could be one unwelcome and unanticipated side effect of the move to digitalisation.
A recent change to the Practice Direction 51ZB it could be argued is an example of this and how costs implications can arise for defendants and insurers.
Practice Direction 51ZB has been amended to modify the rules around obtaining extensions of time for defences within the DCP.
There are many reasons to request an extension of time to file a defence in litigation. Drafting and filing of a defence can be an expensive exercise that the defendant may want to avoid. Also, the defence is the most important document that the defendant will produce, setting out clearly their position and the reasons for resisting the claim.
An extension of time for the defence could be sought to buy time to finalise settlement or, alternatively, the defendant’s representatives may need to obtain key documents or speak to witnesses before committing the defendant to a fixed position.
In the heritage system, and pursuant to the CPR, an extension of up to 28 days to file a defence can be agreed by the parties without having to make a formal application to the court. The only stipulation is that the court must be notified in writing (CPR 15.5 (1) & (2)).
In practice, it is usual for a 7 or 14 day extension to be agreed rather than the full 28 days. It is in the claimant’s interest to grant only short extensions in most cases in order to put pressure on the defendant.
In relation to claims proceeding on the DCP, it is currently only possible to record one extension of up to 28 days. As a consequence, it is advisable to request the full 28 days at the outset if an extension for a defence is needed.
Of course, this is not always possible and claimant solicitors can be reluctant to grant extensions over 14 days. Therefore, the question is what needs to be done when a second extension is needed in DCP claims and the parties have not used all the 28 days available?
Practice Direction 51ZB has been amended as of 24 April 2023 and now provides:
Section. 6.2 is amended as follows:
- the parties may agree an extension, or extensions, of time of up to 28 days in total. The defendant must record on the DCP and such agreed extension of time before the expiry of the time limit stated on the DCP. The time limit will then be amended on the DCP
- if the parties have agreed an extension of time of less than 28 days but then wish to increase the extension up to 28 days in total, the defendant must file an application at the CCMCC
- on receipt of an application under subparagraph (1), the court is to send the claim out of the DCP.
As a result of this amendment, a full application will now need to be made to the County Court Claims Money Centre if a second extension, up to the 28 days for the defence is required.
The revised Practice Direction does not provide any guidance as to how the court will deal with these applications, whether the requested extension will be automatically granted or, if the parties will be required to attend at court for a hearing of the application. Furthermore, the capacity of the court to deal with a potential tidal wave of applications is of concern.
In any event, the filing of an application with the court for an extension of time as above will result in the claim dropping out of the DCP and proceed as a normal paper claim.
This rule change only applies if the case is still in the DCP at the time the defence becomes due.
The obtaining of extensions for the filing of a defence is a routine, and relatively uncontentious aspect of litigation. They are also usually arranged at a minimal cost, a phone call and a short confirmation letter to the court usually suffices.
Inexplicably, this obscure and cheap aspect of litigation appears to be a casualty of the move to digitalise the litigation process. The need to make an application to the court to obtain the full extension period allowed to the parties under the Civil Procedure Rules will inevitably incur additional costs for defendants. Even putting aside the legal representative’s costs, the court fee associated with making an application is an unavoidable expense.
Our advice remains to obtain 28-day extensions, wherever possible, and to factor in these additional costs when reserving carefully if applications have to be made. This amendment also underlines the need for a seamless relationship between insureds and their representatives as recommended in our previous article.
If you have any queries about this update or the DCP and OCMC generally please contact the Weightmans project team on DCPQueries@weightmans.com
Court digitalisation – where are we up to and how litigation is changing
This insight was published on 27 April 2023.
The court’s move to digitalisation of the litigation process, in particular in the form of the Damages Claims Portal (“DCP”), continues to fundamentally change and affect how lawyers carry out litigation in England and Wales. Followers of our series of updates from over the last 12 months will be aware of the chronology of events in respect of the DCP and Online Civil Money Claims (“OCMC”), from the first pilot platforms, to mandation and on to the introduction of enhancements to make the these platforms truly “end to end.”
This update seeks to reflect on the effects of these changes, the challenges that they present and pose questions as to the future conduct of litigation.
It is easy to forget the profound effect the introduction of the portals has had on how litigation is conducted at the county court level. Although the move to digitalisation was a long time in the planning, the way in which the concept has been brought to fruition is noteworthy. The use of a portal system, that greatly reduces the need to correspond with the court and the other parties directly and guides the course of the litigation in such a comprehensive manner, has the objective of making litigation quicker and increasing efficiency in the county court system. However, it would be disingenuous to claim that the introduction of this system has been painless for the lawyers who must now use it. Specific examples will be discussed below but as a general observation, it should be noted that the new system has, in this introductory phase, brought about a conflict around lawyers’ and insurers’ assumptions as to the litigation process as well as, to an extent, their sense of control as to the pace of litigation. Added to this are also the predictable teething issues of familiarisation with the portal systems and the sometime reluctance of some to really engage and get to grips with the new way of working.
The price of efficiency
We addressed the introduction of Standard Directions Orders (“SDOs”) in our last . His Majesty’s Court and Tribunal Service (“HMCTS”) has that these orders may be key to dramatically shortening the lifespan of a case, which certainly is a desirable outcome.
We are now seeing SDOs on the platforms. These orders govern the conduct of a case to trial, setting out the dates by which the parties must carry out certain steps to prepare the matter for trial, such as questions to experts, disclosure and exchange of witness evidence. The SDOs are notified via an email which states that an order has been made and the parties must log into the portal to view and download the order. The notification email contains the “case man” reference but not the names or references of the parties. SDOs received via the relevant portal and require the parties to continue to conduct the litigation within it. Exchange of statements, inspection of documents etc. is complied with within the portal and is achieved by uploading documents. However, the promised efficiency of SDOs has also produced some pitfalls for the unwary and potential extra steps for legal representatives.
The SDOs received so far indicate a new requirement for legal representatives and a sea-change in their method of working. Given that the portals encompass much of the litigation process now, instead of complying with the court direction to exchange or allow inspection of various kinds of documents by sending these to opponents direct, legal representatives must now upload these to the portals. The aim of this is to have an automatically generated trial bundle in anticipation of trial at the end of the process. In the heritage system, many such documents would not have been brought before the court, unless ordered otherwise, prior to the trial itself.
The uploading of documents has raised many practical questions for legal representatives. Will the court be reviewing these documents as they are uploaded to enhance the case management role of judges, or are the documents to be retained merely in preparation of trial? Furthermore, is the act of uploading documents at an early stage of litigation likely to front load costs, particularly in cases that settle prior to trial?
There are also practical logistical considerations, both internally and externally. Typically, the higher value a matter, the greater the complexity and the greater the number of documents produced. Will the practical act of having to upload documents to the portal in high value cases prove to be an expensive exercise for the parties even if the courts’ efficiency is enhanced?
There are also the concerns that emerge from the digitalisation of any process. For example, will the portals have the data storage capacity to deal with such amounts of documentation without affecting the operating efficiency of the system? Will the platforms be stable enough to withstand the addition of large amounts of information without crashing or corrupting data?
HMCTS requires that all uploaded documents not be password protected. This is an example of a potential pitfall of operating in a wholly digitalised system.
If password protected documents are received at the outset of the claim from claimants, the claim will not be issued, and the claim form will not be generated.
Legal representatives will often receive password protected documents from their clients, such as signed defences. With the recent introduction of SDOs, it is likely that they will be uploading many more documents to the DCP and OCMC. Taking the HMCTS guidance into account, it seems logical that if a password protected document is uploaded to the DCP or OCMC, the court direction, to which the document relates, will not be deemed complied with.
Therefore, an additional layer of alertness is needed to ensure that no password protected documents are uploaded to the DCP or OCMC.
Apart from having to upload a substantial number of documents to the relevant portal, the introduction of SDOs has led to the creation of orders to prepare litigation documents in a more precise way. Whilst this appears to be fairly innocuous, this may be an example of how a more uniform digital system can subtly raise the costs of litigation.
For example, many of the SDOs that we have seen have set strict limits on the layout of witness statements in terms of length and format. Operationally, this may create challenges for defendants and add an extra step to their processes. It is not uncommon for insurers to obtain witness evidence via investigators prior to the issue of proceedings. This is a sensible measure in order to assess the merits of the witness and case prior to litigation. However, as insurers and legal representatives will be aware, the format of these statements can vary massively and often with no reference to the drafting standards set down in the Civil Procedure Rules. Therefore, the format of statements should now be considered carefully to avoid duplication by legal representatives when the court stipulates strict rules for the format and length of a statement in a .
So far as we are aware, for disclosure documents, there is no guidance as to the size, format or number of documents the portal is capable of accepting.
Changing operational relationships
If a common theme could be picked out from the above, it would be that the digitalisation of the litigation process requires legal representatives to consider the way they work, with an eye to risk and cost, and their operational relationship with clients.
Without a doubt, digitalisation of the litigation process has led to a substantial overhaul of internal processes in order to handle online cases whilst minimising risk. The potential speed at which an online claim can proceed has also led organisations to consider ways of complying with court orders and preparing cases adequately.
The prospect of quicker trials and early demands for upload of standardised documentation mean many legal representatives, insurers and clients should consider the effectiveness of their operational relationships. For all the reasons mentioned above, clear communication and prompt fulfilment of each other’s needs is more important now than ever to ensure litigation can be conducted at the courts’ new pace and in a minimal risk manner.
Further enhancements to the DCP & OCMC Platform come online
This insight was published on the 10 March 2023.
There have been recent amendments to the Practice Directions governing the DCP and OCMC. The platforms, accessed via MyHMCTS, have also gained additional functionality. Here are the changes you need to know about.
It is now possible for claimants to obtain default judgment within the DCP and OCMC. Default judgment will not be granted if an application for summary judgment or strike out has already been made and not yet heard. If a defendant has satisfied the claim, including costs, default judgment also cannot be applied for.
Its important for defendant legal representatives to be alert to this enhancement. Potentially this enhancement will allow claimant representatives to move more quickly than at present to obtain default judgment.
Filing of Documents
It appears that HMCTS is also attempting to increase legal representative interaction with the DCP. The updated Practice Direction 51ZB (governing the DCP) clarifies that in respect of filing documents with the court that, if the document can be filed via the DCP, then it must be filed in the DCP.
Transfer to a Hearing Centre
Transfer of a matter to a regional hearing centre previously meant that the claim dropped out of the DCP. A transfer to a hearing centre, after direction questionnaires have been filed, will now not necessarily mean that a claim has left the DCP. Hearing centres will continue to use the DCP to manage the claim; please see more below in respect of standard direction orders. This is another step in making the OCMC and DCP “end-to-end” processes.
Standard Directions Orders
HMCTS have informed us that a further new enhancement to the DCP and OCMC portals was released on 8 March 2023. Standard directions orders (SDO) and hearing orders will now be sent to legal representatives via the relevant portal.
In practical terms, following the completion of the indication of “intention to proceed” step in the portal by the claimant legal representative, DCP/OCMC cases will be immediately pushed to a Judge or legal adviser* to review and make an appropriate SDO allocation to track order.
The “intention to proceed” step comes directly after the defendant has filed their defence and submitted their DQ information. The claimant then completes their DQ information and completes the “intention to proceed” step.
When the SDO is created the parties will receive a notification via their My-HMCTS registered email address to inform them of activity on the case and to invite them to view the order on the DCP/OCMC.
A hearing notice, detailing the date and time of any hearing will follow shortly after the SDO creation and will also be received by parties digitally with a notification being sent via the DCP/OCMC.
We are informed that this enhancement will significantly reduce the current wait by parties for their case to be reviewed and allocated. In the litigant in person version of the portal, the wait time from issue to allocation has been reduced from 24.8 weeks to 9.43 weeks. If this enhancement is as effective as advertised, it would me a significantly shorter lifespan for claims. Of course, time will tell on this point.
*Legal advisers will review specified cases of £1k or less.
The DCP/OCMC Project team at Weightmans continues to liaise with MyHMCTS in respect of developments in the continuing court digitisation project. If you have any queries about the use of the DCP or OCMC please contact the DCP/OCMC Project team at DCPqueries@weightmans.com
Current DCP platform enhancements
This insight was published on the 11 October 2022.
- Defendant users of the DCP are now able to add a Defence to the DCP where the response to the claim is part admission.
- Previously, if a defendant did not intend to defend the whole claim, then the claim would drop from the DCP and continue the traditional paper route.
- A claim will no longer drop from the DCP where the defendant indicates they intend to defend part of the claim.
- When a defendant’s solicitor is given notice of claim in the DCP they must provide the claimant’s solicitor with an appropriate email address for service. If the defendant’s solicitor does not provide an email address, then the claimant’s solicitor can chose an email address they deem appropriate to notify claim details.
- Early notification by clients to Weightmans is crucial where we are nominated to act to allow sufficient time for us to provide the correct email address to the claimant’s solicitor.
- If we are unable to respond in time to the claimant’s solicitor, then this could lead to notification of claim details to any email address at Weightmans.
- Clients should continue to provide claimant’s solicitors with the email address email@example.com when nominating us. (For all other claims, not proceeding via the Damages Claims Portal, please continue to provide claimant solicitors with the email address firstname.lastname@example.org)
Imminent future enhancements
- Exploring whether email notifications can be sent to the parties when a claim has been dismissed with the aim of providing clarity to the parties.
- Working towards understanding whether more than one extension of time can be added on the DCP. Currently only one extension of time can be added to the DCP.
- Work is commencing to allow Notice of Change and Certificate of Service functionality.
We have included a flowchart showing the delivery of the Civil Reform Plan.
DCP mandatory for defendant legal representatives
Defendant mandation communication letter
Following on from our latest update below about the use of the DCP becoming mandatory for defendants from 15 September 2022, HMCTS have issued a letter to all defendant solicitors.
Notably, in the absence of an acceptable reason why the DCP has not been used, any paper responses sent to CCMCC beyond 15 September 2022 will be returned.
A link to the updated Practice Direction can be found in the communication from HMCTS.
As most interested observers will be aware, the Damages Claims Portal (DCP) has been mandatory for claimant legal representatives for some time. All claims, for unspecified damages only, must be commenced in the DCP.
However, up to now, the use of the DCP has been voluntary for defendants. At present, defendant’s legal representatives must agree to have proceedings served upon them via the DCP. If permission is not given, the claim leaves the DCP and proceeds as a “paper” claim.
From 15 September 2022, using the DCP will become mandatory for defendant legal representatives.
What are the changes?
The involvement of defendant legal representatives will be regulated by the updated version of Practice Direction 51ZB of the Civil Procedure Rules recently released by the Ministry of Justice. The changes deal primarily with ensuring that the defendant’s solicitors are in a position to accept service of proceedings via the Damages Claims Portal:
- The updated Practice Direction introduces a new requirement for the claimant solicitor to notify the defendant at least 14 days prior to bringing a claim using the DCP, “unless it is impractical to do so”. This requirement is to give the defendant the opportunity to instruct a legal representative prior to service of proceedings.
- If the defendant instructs solicitors to accept service of proceedings, this must be communicated, by the defendant, to their solicitors. This is because there is a requirement for defendant solicitors to notify the claimant that they are instructed.
- The defendant solicitor must sign up to the DCP before the claim is started (please note, the claimant solicitor no longer needs explicit confirmation from the defendant solicitor that they are prepared to accept service of proceedings in the DCP as was the case previously).
- The defendant solicitor must also provide the claimant solicitor an email address for claims notifications from the DCP.
- In turn, the claimant solicitor must provide this email address to the court.
The amendments to the Practice Direction seek to increase the utilisation of the Damages Claims Portal by making its use mandatory for defendant legal representatives. However, the amendments do not make it mandatory for defendants to instruct solicitors prior to issue of proceedings in the DCP. If no solicitors are instructed the claimant will issue proceedings within the DCP and then serve them in the traditional way (by post or some other agreed method). The claim will then drop out of the DCP and proceed offline.
The amendments give defendants extra breathing space to get legal representation in place but do not go as far as they could have in ensuring absolute defendant participation in the DCP. No doubt, this is due to the current limitations of the DCP, but as it develops, particularly in allowing the participation of litigants in person or insurers, this will change.
The modification and development of the Damages Claims Portal continues at pace. Her Majesty's Court and Tribunal Service (HMCTS) has received a huge amount feedback from the legal and insurance sectors and, as a result, plans a large expansion of the capabilities of the DCP in near future particularly in the area of interim applications.
It will be interesting to see if the mandate for defendant legal representatives and the updated Practice Direction will increase the utilisation of the DCP.
Mandatory use of the Damages Claims Portal
Our recent article reported that the Damages Claims Portal (DCP) has now become mandatory for claimant legal representatives. This means that all claims for unspecified damages only must be commenced in the DCP. This is all part of an ongoing policy to digitise as much of litigants’ interactions with the courts as possible.
However, up to now, the use of the DCP has been voluntary for defendants. At present, a defendant’s legal representatives must agree to have proceedings served upon them via the DCP. If permission is not given, the claim leaves the DCP and proceeds as a “paper” claim.
As for defendants who have not instructed solicitors prior to proceedings being commenced in the DCP, at present, there is no facility for defendants to sign up to or accept service via the DCP unless they are represented by solicitors.
Therefore, where insurers often deal with claims prior to issue of proceedings, it is unsurprising that many claims have started in the DCP and automatically exited as there are no defendant legal representatives on the record.
The Damages Claims Portal continues to be developed and tested and, from 2 June 2022, it will become mandatory for defendant legal representatives to use the DCP.
The involvement of defendant legal representatives will be regulated by an updated version of Practice Direction 51ZB of the Civil Procedure Rules. It is unsurprising that the updated Practice Direction takes steps to increase the utilisation of the DCP.
The updated Practice Direction introduces a new requirement for claimant solicitors to notify defendants 14 days prior to bringing a claim using the DCP. This requirement is presumably to give the defendant the opportunity to instruct a legal representative prior to service of proceedings.
If the defendant instructs solicitors to accept service of proceedings, this must be communicated, by the defendant, to their solicitors as well as the claimant. This is because there is a requirement for defendant solicitors to notify the claimant that they are instructed.
The defendant solicitor must sign up to the DCP before the claim is started and the claimant solicitor no longer needs confirmation from the defendant solicitor that they are prepared to accept service of proceedings in the DCP.
The amendments to the Practice Direction do not make it mandatory for defendants to instruct solicitors prior to issue of proceedings in the DCP but do give defendants extra breathing space to get legal representation in place.
Proceedings where no defendant legal representative has been nominated will not continue in the Damages Claims Portal, but should be served in the usual way by post, or some other agreed method.
It is notable that there has been no expansion of access to the DCP for parties like insurers or litigants in person. However, it is certain that modification and development of the DCP continues at pace. Her Majesties’ Court and Tribunal Service has received a huge amount feedback from the legal and insurance sectors and, as a result, plans a large expansion of the capabilities of the DCP in near future.
It will be interesting to see if the mandate for defendant legal representatives and the updated Practice Direction will go some way to increase the utilisation of the DCP.
The Damages Claims Portal is coming
This insight was published on the 31 March 2022.
Her Majesty’s Court and Tribunals Service (HMCTS) has, over the last few years, been developing digital services to improve the efficiency of the courts.
One such innovation is the Damages Claims Portal (DCP) which is imminently due to leave the pilot stage and become mandatory for use by claimants from 4 April 2022 and for defendants from June 2022.
Weightmans is at the forefront of the testing of the DCP, from a defendant perspective, and is working with HMCTS to request key features that will benefit the parties are included.
What is the Damages Claims Portal?
The Damages Claims Portal is an online claims process for county court damages claims that facilitates the digital issue of a claim. The DCP is designed to allow defendants to respond to the claim digitally via the Portal.
The DCP is intended, in the long term, to be a full and streamlined end to end service for damages claims in the county court. However, at present, the DCP service guides a claim from issue of proceedings to filing of directions questionnaires only.
The DCP enables users to issue and serve proceedings, acknowledge receipt of the claim, file a defence, seek a defence extension, file directions questionnaires, file proposed directions and upload documents. This is all completed via the Portal without the need to send paper or PDF documents to the court. The DCP also has a notification function that automatically serves documents on an opponent’s legal representatives at the same time as they are filed in the DCP.
After the claim has passed the Directions Questionnaire stage, the claim, for now, exits the DCP and continues in the county court in the current format.
What claims are affected by the DCP?
The Damages Claims Portal will cover all county court claims for damages only. This includes claims for personal injury. There are various claim types that are not covered by the DCP including:
- Claims brought under CPR 8 (for example, infant approval proceedings);
- Claims where the claimant is a protected party; and
- Claims with more than three parties.
Key differences in the way claims are handled
The Damages Claims Portal never closes. It is open for a claimant to issue proceedings outside of office hours including weekends. However, this does not affect the rules of service — defences still must be filed by 4pm on the last available day as provided for in the Civil Procedure Rules.
The DCP seeks to speed up the administrative tasks around bringing a claim for damages so that, over time, court backlogs will start to decrease.
The court will not automatically enter judgment in respect of claims that are not responded to in the DCP. If there is no response then the claimant will have to apply for judgment. If the claimant does not do so, then the claim will be dismissed from the DCP after 6 months.
What preparations need to be made by insurers and self-insured?
Developing effective internal processes within legal representative organisations will be key in ensuring a smooth transition to Damages Claims Portal. An important aspect of this is creating central points of contact for receipt of new proceedings between representatives and the DCP. This will help create the same visibility in respect of DCP-issued proceedings as exists in the current email and post-based system.
Parties engaging with claimants preparing to issue proceedings via the DCP, be they insurers, self-insureds or legal representatives, can assist in this process by identifying to claimants the correct email address for DCP purposes of their chosen legal representatives.
For more information on the Damages Claims Portal, contact our insurance law solicitors.