A protocol aimed at cutting out opportunistic tactics by either claimants or defendants in personal injury (PI) cases during the Covid-19 pandemic has been unveiled by leading claimant firm Thompsons and the Association of British Insurers (ABI).
The ‘coronavirus personal injury protocol’ aims to mitigate the impact of the disruption caused to ongoing cases, and the authors are seeking support from across the market.
As of this morning, 11 insurers have signed up – including Aviva, RSA, Zurich, NFU Mutual and Direct Line – and 11 claimant law firms, including Slater & Gordon, Leigh Day, True Solicitors, Stephensons and Bott & Co.
It comes amid growing calls by practitioners for the Civil Procedure Rule Committee to extend time limits and limitation periods during the crisis.
The protocol recognises that the pandemic provides “opportunities for both sides to opportunistically gain an unfair advantage by, for example, taking advantage of missed deadlines”.
It says: “Whilst such action is ultimately likely to be given short shrift by the courts it is not in anyone’s interests to test that.”
As a result, the protocol provides:
- An agreement that all limitation dates in all PI cases are frozen and claimants undertake to respond constructively to defendant requests for extension of time to serve a defence;
- An escalation process whereby any issue arising by a party’s failure to act in accordance with this, and which cannot immediately be resolved between the parties, is referred to an email and/or telephone ‘hotline’ specifically established for this situation; and
- A commitment that the email and telephone hotline will be monitored regularly and referred to senior people within the respective organisations who will be able to make a swift decision as to whether the stance being taken should be adjusted in light of prevailing circumstances.
Thompsons and the ABI said the protocol would be put into effect immediately for an initial four weeks (until 20 April), with a joint review in the week commencing 13 April. They recognised that the Lord Chief Justice may have taken similar action by then.
Tom Jones, Thompsons’ head of policy, said: “We have all needed to innovate because the normal rules governing the PI claims process have started to fray very fast. The threat to individual claimants and access to justice has become too great to ignore, and this protocol puts a practical framework in place.
“This protocol needs industry-wide support. Like coronavirus, the protocol doesn’t take sides but unlike coronavirus it can help everyone – claimant solicitor or defendant insurer.”
James Dalton, the ABI’s director of general insurance policy, said: “At this unprecedented time, insurers want to work together with others to continue to give claimants the help and support they need during this very difficult and worrying period.
“In order for personal injury claims to continue to progress, we have put this temporary protocol in place to deliver on that objective.”
Organisations can pledge their commitment to the protocol, and see who has signed up, on the ABI’s website.
Yesterday, leading civil litigation blogger Gordon Exall, a barrister at Kings Chambers, garnered significant online support for his suggestion of an open letter to the Civil Procedure Rule Committee, “and anyone else who will listen”, seeking permission for parties to agree open-ended extensions of time.
“This would stop the courts being clogged up with applications for extensions,” he tweeted.
Tim Beasley, head of catastrophic injury at north London firm Levenes, agreed but added: “All directions should be suspended. But not stayed. A stay has consequences. We can try to work on cases as best we can pending the end of the crisis [if] deadlines are extended indefinitely.”
Another supporter, Jenna Kisala, a senior solicitor in the clinical negligence team at Howells in Sheffield, tweeted: “Definitely. My counterpart wasn’t answering emails before this and now I cannot ring to try to get another in the office. Make it automatic or defendants just have to ignore us with no consequences.”
Mr Exall has drafted the letter overnight. It says the restriction in the CPR on parties agreeing extensions of more than 28 days is “ludicrous” in the circumstances of the pandemic.
He calls for the rule committee to allow parties to agree general extensions of time from today and also suspend CPR 3.9.
“It is absurd that litigators, who have a duty to continue to provide a public service, have to worry about time periods, about being struck out, about not being paid because a costs budget cannot be lodged timeously, about a default judgment being entered because they cannot speak to key witnesses.
“All of these time periods must be relaxed. The rules should encourage the parties to co-operate, they should ensure that the relevant document is placed, in good time, before a judge hearing a remote hearing, however this is not a time for sanctions.”
Mr Exall said the requirement that a party sign their own witness statement and disclosure statement should also be suspended.