Corin Furness and Anna Clarke explore recent case law addressing the costs consequences for a party which has exited the RTA Protocol and how this is likely to apply to the EL/PL Protocol.
The Pre-Action Protocol for low value personal injury claims (‘The Protocol’) applies to any Employer’s Liability (EL) or Public Liability (PL) claim which is between £1,000 and £25,000 in value and arose from an accident occurring after 31 July 2013 (rule 4.1). The Protocol is designed expedite and cut costs of low value personal injury claims.
The EL/PL Protocol specifies certain circumstances when a claim may exit the Portal. Claims that leave the EL/PL Protocol cannot subsequently re-enter the process (rule 5.11) and will proceed under Part 7 CPR. If however a Court feels that a party has acted unreasonably by discontinuing the Protocol process then it is likely to be subject to an adverse costs order. This article addresses the issue of claims inappropriately leaving the Portal.
For Claimant solicitors there is the inevitable temptation to leave the portal and issue Part 7 proceedings in order to maximise costs. The limited case law arising from the RTA Protocol is probably the best guidance currently available to judge when a Court will decide whether the reason to leave the Portal was unreasonable.
Rule 7.59 allows the Claimant to withdraw a claim from the Protocol if it is unsuitable due to complex issues of fact or law. In the case of Dickinson v Langford, Birkenhead CC, 14.02.13 (unreported) the Judge held that a contested care claim could be dealt with in the RTA Portal by filing a witness statement and a detailed schedule of loss. The lesson learnt from this case is that Claimant solicitors need to think carefully about what is required to prove a claim (for example a loss of earnings claims) which is proceeding through the Portal. From a Defendant’s perspective, it may be prudent at Stage 2 of the Protocol to request evidence which is needed to value the claim. This approach is likely to make it difficult for the Claimant to argue that the head of loss could not be resolved within the Portal.
In Jaykishan Patel v Fortis Insurance Ltd (2011) 23/12/2011 Mr Recorder Morgan held that the Claimant had acted inappropriately by withdrawing from the RTA Portal due to the Defendant’s failure to send a response to the Claim Notification Form. It was significant that the Defendant’s failure to comply with the rule (namely serving its response to the Claim Notification Form a day late) was treated as no more than technical non-compliance. According to the Judge, this did not prevent the claim from progressing smoothly through the RTA Portal. It appears that Courts will consider removal from the RTA Portal as a ‘drastic’ option, which should not be undertaken lightly.
The Courts have taken different approaches with regard to costs when a claim unreasonably leaves the RTA Portal. In Jaykishan Patel v Fortis Insurance Ltd it was held that it was sufficient punishment that the Claimant was restricted to fixed costs. In Monteith v Carroll Liverpool County Court, 17 October 2012 however, the Claimant was also ordered to pay the Defendant’s costs of defending the Part 7 proceedings. The Deputy District Judge in the case of Uppal v Daudia LTLPI 9/7/2012 went one step further and assessed the Defendant’s costs on an indemnity basis. The case law confirms that the Court has a wide discretion with regard to costs consequences as a result of a breach of the RTA Protocol.
It is probably significant that there are no reported RTA Protocol cases (that we have been able to find) where a party has elected to leave the RTA Portal and the Court has found this to be reasonable. The message from RTA Protocol case law is clear – parties are expected to work within the Protocol and a party that chooses to leave the process is at risk of an adverse costs order. The judicial attitude is that claims should only leave the RTA Portal as a last resort. It is likely that a similar approach will be taken with the EL/PL Portal.
Monteith v Carroll Liverpool County Court, 17 October 2012
Uppal v Daudia LTLPI 9/7/2012
Jaykishan Patel v Fortis Insurance Ltd (2011) 23/12/2011
Dickinson v Langford, Birkenhead CC, 14.02.13 (unreported)
CPR Cumulative Second Supplement to the 2013 Edition
'The Quirks of the MOJ Portal' by Sarah Robson, FOIL (Forum of Insurance Lawyers) November 2012.