26 February 2013Print This Post

Getting to grips with the new pre-action protocols

Bott: the elephant in the room is costs

Former APIL president David Bott highlights some of the key changes in the draft pre-action protocols for low-value personal injury claims in road traffic accidents (RTA) and employers’ liability and public liability (EL/PL) claims, which were released last week

RTA PROTCOL

What it applies to
The protocol applies to all RTA matters above £1,000 and less than £25,000 (on a full liability basis) where the accident occurred after 1 April 2013. However, if the damages are less than £10,000, the trigger date is date the date of submission of the claim notification form (CNF), assuming the accident occurred after the start of the previous protocol (30 April 2010).

The trigger date
When the protocol first came into force on 30 April 2010, it applied to all accidents occurring on or after that date and this logic is applied to the EL/PL matters, i.e. it is date of accident that is the trigger point.

However, the new RTA protocol (clauses 4.1 and 4.2) will apply to all claims where the CNF was submitted on or after 1 April 2013. This means that all historical accidents that are submitted after the new protocol comes into force will be dealt with under it.

If the protocol had of been drafted using date of accident as the trigger, there would have been an overhang of up to three years of claims in which the current cost regime would have applied. This would have helped aid the transition between the old and new cost regimes.

But as a result of the wording there is no overhang – more like a portcullis coming down. On 30 March 2013 costs are £1,200 plus uplift and on 1 April 2013 a new regime is set to come into force.

Payment of stage 1 and stage 2 costs
The actual costs for the stages in the new protocol have yet to be announced. However, when they are, the due date for payment of stage 1 costs will no longer be once liability is admitted at the end of stage 1. It moves to payment within 10 days of receipt of the stage 2 settlement pack.

Stage 2 costs are due within 10 days of when the matter settled or within 15 days of submission of the court proceedings pack.

Medical reports
The previous limit on medical reports has been lifted to accommodate more complex matters.

Witness statements
Not previously included, but now can be provided where reasonable to value the claim.

Interim payments
If the claim is valued at more than £10,000, multiple interim payments can be requested.

Counsel’s opinion
May be justified in claims valued at more than £10,000.

 

EL/PL PROTOCOL

It applies to all EL and PL matters, including disease that is contracted as a result of breach of common law or statutory duty, occurring after 1 April 2013 with a value of between £1,000 and £25,000 (on a full liability basis).

It does not apply to disease claims where the letter of claim was sent prior to the 1 April 2013.

Completion of the CNF
The CNF should go to the insurer and a defendant-only CNF should go to the defendant. The defendant-only CNF does not need to be sent if the defendant is insolvent, has been dissolved or has ceased to trade.

If the insurer is not known, or the defendant is known not to have insurance, the CNF goes direct to the defendant and the defendant-only CNF is not needed. Reasonable enquiries to find the insurer should be made including searching the Employers’ Liability Tracing Office (ELTO) database.

If the defendant is not registered on the portal, the CNF must be sent via first-class post.

Response to the CNF
The defendant has 30 days in the case of EL and 40 days in the case of PL.

Contributory negligence
If the defendant alleges contributory negligence of any proportion, the claim falls out of the protocol. Otherwise the RTA and EL/PL Protocols are broadly similar.

 

GENERAL COMMENTS

We still do not know the actual implementation date for the protocols or indeed whether they will be rolled out together or staggered.

I believe the date of submission point on RTA matters less than £10,000, and the movement of stage 1 costs to the start of stage 2 is a huge windfall for insurers and yet more bad news for the claimant representatives.

The elephant in the room is costs. It is now less than six weeks to 1 April 2013 (the proposed implementation date) and we still do not know what the value of our work is. How on earth do we plan?

What is clear is that whatever the costs come back as, we are going to have to be good at change management and we are going to plan pretty quickly. Due to the drafting, the costs that a claimant representative can charge for an RTA matter of less than £10,000 will change overnight.

David Bott is the past president of the Association of Personal Injury Lawyers and the senior partner at Bott & Co. He has been extensively involved in the Ministry of Justice’s streamlined claims process and now sits on the board of PortalCo as an APIL representative

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