New rules, new games being played?

The new Protocol and Portal process is applicable to all fast track EL/PL claims where the date of the accident occurs on or after the 31 July 2013.

The new Protocol and Portal process is applicable to all fast track EL/PL claims where the date of the accident occurs on or after the 31 July 2013.

It is early days since the extension of the portal to fast track EL/PL claims but anecdotal information and direct reports from the motor experience are filtering through. A brief overview of the key aspects of the new rules is detailed below, followed by a consideration of the behaviours which we have come across to date. Finally, we have included a breakdown of the new fixed fees regime for easy reference.

Key facts to remember in respect of the Portal

  1. There are 3 stages to the Portal:
    • Stage 1 is notification of the claim via a Claims Notification Form (CNF) and the liability decision. The CNF has to be replied to within one working day and there is then a period of 30 days for EL claims and 40 days for PL claims to provide a liability decision.
    • Stage 2 is the submission of the settlement pack and consideration period. The total consideration period is 35 days. Any withdrawal of a causation admission is to be made within the first 15 days of the consideration period.
    • Stage 3 is the court proceedings pack and oral or written hearing.
  2. The claim will no longer proceed via the portal where:
    1. Contributory negligence is alleged
    2. The CNF response is not completed
    3. Where liability is not admitted
    4. The defendant considers there is inadequate mandatory information in the CNF
    5. If proceedings were issued the small claims track would be the normal track for the claim
  3. EL and PL claims which exit the portal will fall out into the wraparound fixed fees.

Behaviours observed to date

No doubt in the forthcoming months a clearer picture will emerge, although even in the short term the following behaviours have been reported to us and advised upon:

  1. Insufficient information contained within Claims Notification Forms (CNFs) and on occasion refusals by the Claimant’s solicitors to engage in communications, whether that be requests for additional information or clarification of their claim.
  2. A sense that certain Claimant solicitors wish for claims to exit the portal to secure increased costs.
  3. Claimant solicitors electing to exit the Portal when defendants have communicated by email with documents attached alleging that such communications do not amount to an electronic communication.
  4. Claims submitted via the Portal which are clearly multi track in an attempt to secure a liability admission only to exit the Portal at Stage 2 on grounds of the value of the claim.
  5. Triage service being offered to Claimants by their solicitors to increase disbursements and/or specials claimed. E.g. treatment costs incurred before any medical assessment undertaken to identify if the treatment is necessary.
  6. Increased use of psychology reports resulting in the potential for inflated claims and increased disbursements.
  7. Stage 2 settlement packs being submitted without documentary evidence resulting in a reduced ‘consideration period’ whilst the defendant has to request provision of such.
  8. No response to Stage 2 counter offer and Part 7 proceedings being issued (as opposed to Stage 3 Part 8 proceedings) on the basis that the claim is considered to be too complex for Stage 3.
  9. Tactical timing of the making/acceptance of Part 36 offers (once a matter exits portal) to trigger the next stage of fixed costs.
  10. Disbursements being claimed as part of specials (e.g. translation fees)

Steps which can be taken to combat such behaviours

  1. Continue to improve processes – delays in investigations, decision making and payment processing will give claimants the opportunity to exit the portal and seek increased costs.
  2. Weightmans LLP have developed a costs calculator which can be used to make informed decisions on costs implications at an early stage and throughout the claim.
  3. Make a stand – where claims unreasonably exit the portal argue that portal fixed costs should apply. Similarly don’t be afraid to challenge bad practices; for example if the information in the CNF is insufficient, elect to exit the portal yourself (after a reasonable attempt to engage your opponent) and argue that portal costs only should apply.
  4. Challenge disbursements – you can still agree damages but dispute disbursements and allow a Judge to make a decision to try and combat the problem of unnecessary expert usage.
  5. Remain vigilant – if you remain unconvinced about causation or have concerns about fraud, decide whether any admissions should be made at the outset or alternatively if an admission has already been made withdraw any causation admission within the 15 days initial period following receipt of the Sage 2 settlement pack.
  6. Training – ensure all case handlers are alive to the issues and tactics they may come across.

How we can help

  1. Feedback emerging behaviours to us and we can advise on solutions and offer our ongoing support.
  2. Provision of continued and bespoke training to deal with the ongoing effects of the reforms.
  3. Collation of MI regarding portal claims received, quality of CNF’s, and reasons for portal exit and/or increased costs.

Fixed costs in relation to the EL/PL portal

  Where the value of the claim for damages is not more than £10,000 Where the value of the claim for damages is more than £10,000, but not more than £25,000
Stage 1 fixed costs £300 £300
Stage 1 fixed costs £600 £1300
Stage 3 – Type A fixed costs £250 £250
Stage 3 – Type B fixed costs £250 £250
Stage 3 – Type C fixed costs £150 £150

Where the claim exits the portal it will fall in to the wraparound fixed fees as follows (VAT is payable in addition)

Wraparound costs

Employers' liability
Case settlement stage fixed costs Pre issue
£1,000 - £5,000
£950 + 17.5% of damages
Pre issue
£5,001 - £10,000
£1,855 + 12.5% of damages over £5k
Pre issue
£10,001 - £25,000
£2,500 + 10% of damages over £10k
Issued post issue pre allocation
£2,630 + 20% of damages
Issued post allocation pre listing
£3,350 + 25% of damages
Issued post listing pre trial
£4,280 + 30% of damages
Trial advocacy fee

£500 (to pound;3k)
£710 (£3k - £10k)
£1,070 (£10k - £15k)
£1,705 (£15k+)
Escape 20% 20% 20% 20% 20% 20% N/A
Public liability
Case settlement stage fixed fee Pre issue
£1,000 - £5,000
£950 + 17.5% of damages
Pre issue
£5,001 - £10,000
£1,855 + 10.5% of damages over £5k
Pre issue
£10,001 - £25,000
£2,370 + 10% of damages over £10k
Issued post issue pre allocation
£2,450 + 17.5% of damages
Issued post allocation pre listing
£3,065 + 22.5% of damages
Issued post listing pre trial
£3,790 + 27.5% of damages
Trial advocacy fee

£500 (to pound;3k)
£710 (£3k - £10k)
£1,070 (£10k - £15k)
£1,705 (£15k+)
Escape 20% 20% 20% 20% 20% 20% N/A

For further information about the issues raised in this update please contact Navdip Wilson on 0116 261 6415 or via navdip.wilson@weightmans.com

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