Draft RTA and EL/PL protocols published ahead of rule committee debate

RTA claims: instructing counsel may be reasonable to value claims worth more than £10,000

The updated drafts of the pre-action protocols for the extended RTA claims process and the new employers’/public liability (EL/PL) process were circulated yesterday.

The drafts – which were first consulted on last autumn – will be considered and signed off at the next meeting of the Civil Procedure Rule Committee on 8 March.

However, it is still not known whether they will actually be in use on 1 April as the Ministry of Justice has yet to announce what has been decided about the timetable for implementation. There is also no news about the level of fixed recoverable costs.

The trigger for the revised RTA process is that the claim notification form (CNF) is submitted on or after 1 April, although where the accident took place before then, only claims worth up to £10,000 can be run through it.

For the EL/PL process the trigger is that the accident occurred on or after 1 April, or in a disease claim, that no letter of claim has been sent to the defendant before 1 April.

Writing on his blog, David Bott, managing partner of Bott & Co and former president of the Association of Personal Injury Lawyers, said: “If the [RTA] protocol had been drafted using the date of accident as the trigger, there would have been an overhang of up to three years of personal injury 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. This is a superb result for insurers and yet more bad news for the claimant representatives.”

Both protocols say that in most cases it is expected that the claimant’s legal representative will be able to value the claim. However, in some cases with a value of more than £10,000, “an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim”.

Among the interesting features of the RTA protocol is an addition to the preamble pointing out that the CPR “enable the court to impose costs sanctions” where the protocol is not followed.

Where the claimant obtains more than one expert report or an advice from a specialist solicitor or counsel, the defendant may refuse to pay at the end of stage 2.

It also says that in most claims with a value of up to £10,000, “it is expected that the medical expert will not need to see any medical records”.

The RTA protocol should bring an end to the so-called ‘£400 Club’ of solicitors who put in a claim, receive the stage 1 payment of £400 and then withdraw it. From April, stage 1 costs will be payable within 10 days of receiving the stage 2 settlement pack.

Out of scope of the EL/PL protocol are all PL disease claims, as well as disease claims where there is more than one defendant and mesothelioma cases. The defendant has 30 business days to respond to the CNF in EL claims, and 40 business days in PL claims. Where contributory negligence is alleged, the claim will leave the protocol.


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