24 October 2012Print This Post

Draft protocols for expanded RTA and new EL/PL portals herald end to ‘£400 Club’

Employers’ liability: protocol follows RTA example

An end to the ‘£400 Club’ of claimant solicitors who play the RTA portal is in sight after the Master of the Rolls revealed a draft amended pre-action protocol, as well as draft protocols for employers’ liability and public liability (EL/PL) claims.

The draft protocols are the clearest sign yet that the vertical and horizontal extensions of the RTA portal will go ahead in April 2013, although in his letter to stakeholders Lord Dyson made no reference to whether the underlying technology will be ready in time – which many observers consider unlikely.

In line with a letter earlier this year seeking views on extension from then justice minister Jonathan Djanogly, the draft protocols are not going out to full public consultation. They have been sent to key stakeholders and those who have shown an interest in participating in the consultation, with encouragement to forward them to others where appropriate. The closing date for comments is 23 November.

In his covering letter, Lord Dyson said certain aspects of the protocols are not open to adjustment as they are matters of government policy: the level of costs – with Professor Paul Fenn “updating his work on this” – the exclusion of certain claims from the scope of the protocols, and the response period within stage 1 of the protocols.

The draft revises the RTA protocol so as to incorporate claims up to £25,000 for accidents occurring on or after 6 April 2013. The preamble has been strengthened so that using the portal is mandatory. Steve Thomas, director of market affairs at defendant firm Keoghs, said this will “finally stop those few claimant lawyers who tried to bypass the portal by using facsimile transmission”.

The ‘£400 Club’ refers to solicitors who put in a claim, receive the stage 1 payment of £400 and then withdraw it. From next April, stage 1 costs will be payable within 10 days of receiving the stage 2 settlement pack. “This should eradicate the so-called ‘£400 Club’, Mr Thomas said.

The draft also includes subtle changes to the medical evidence requirements. In cases over £10,000, a new duty will exist to disclose relevant medical records with the medical report.

The EL/PL protocol largely mirrors the RTA process. It will apply claims of up to £25,000 in value, where the accident occurs on or after 1 April 2013, or in the case of a disease claim where no letter of claim has been sent to the defendant before 1 April 2013.

Out of scope are all PL disease claims, as well as EL disease claims where there is more than one tortfeasor. Claims will not continue within the protocol where a defendant alleges contributory negligence.

Defendants will have 30 days to respond with an admission of liability in EL cases, and 40 days for PL. As in motor, there will be a duty to disclose relevant medical records with the medical report, albeit the EL/PL protocol as drafted does not currently contain the £10,000 distinction.

Mr Thomas said: “This is an important step in the journey to secure the Jackson reforms for April 2013. Keoghs will be working with clients and other stakeholders to formulate a detailed response to the Ministry of Justice, to try to ensure that the final rules are both clear and practical, and will operate to keep as many cases in the new process as is possible.”

 

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