3. Comparison of Low Value RTA PAP and PI PAP PDF

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Workshop 1 - RTA Claims ...

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Comparison: Pre-Action Protocol for Low Value RTA Claims & the Pre-Action Protocol for Personal Injury Claims (Chapter 21) Pre-Action Protocol for Low Value RTA Claims

Pre-Action Protocol for Personal Injury Claims

Pre Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. When does it apply?

Proces s

RTA Claims:  RTA claims where value does not exceed the “Protocol Upper Limit” (para 4.1).  Protocol Upper Limit = £25,000 (if CNF is submitted on or after 31st July 2013) (para 1.2). EL Claims  Which do not exceed £25,000.  Split into three “Stages”: Stage 1 Claim Notification Form 1. C sends CNF to D’s insurer via www.claimsportal.org.uk. 2. C sends the CNF to D by FIRST CLASS POST. 3. D’s insurer must send electronic acknowledgment the DAY AFTER RECEIPT. 4. CNF includes an “Insurer Response” section. The insurer must complete this within 15 days for an RTA claim. 5. Insurer Response is 30 days for EL Claims. Insurer Response 6. IF D’s insurer admits liability: o Claim will proceed to Stage 2 7. IF D’s insurer denies liability, does not respond, alleges contributory negligence: o Claim exits Low Value Protocol and will be dealt with under the PAP for PI Claims, starting at para 5.5. o This enables the CNF to be used as the LOC. 8. IF D’s insurer asserts that info in the CNF is inadequate: o Claim exits Low Value Protocol and will be dealt with under the PAP for PI Claims, starting at para 5.1. o The CNF is inadequate, therefore C must send 2 copies of

 Where the value of the claim is greater than £25,000 (so the Low Value PAP does not apply) (1.1.2)  Cases which exit the Low Value Protocol (1.2). o Will occur unless the insurer admits liability in response to the CNF.  Intended to apply to Fast-Track claims (1.1.2): o If Claim is likely to be allocated to the MT, the “spirit, if not the letter of the Protocol should still be followed”. Letter of Notification  Parties “may” wish to send a Letter of Notification (3.1) to advise the defendant of info available to help determine issues of liability/quantum etc (3.2)  If a LON is sent, should be acknowledged by D within 14 days of receipt (3.3). Rehabilitation  Parties should consider whether C has reasonable rehabilitation needs (4.1) and have regard to the Rehabilitation Code (4.2).  This means that the Defendant is encouraged to help pay for treatment as early as possible. This is with a view to minimising the potential overall damages which may be payable. Letter of Claim:  Para 5.1: Two copies, one for D, one for D’s Insurer. o Insurer copy must be sent within 7 days of D receiving the LOC.  Contents (5.2 - 5.4): o All the info in Annexe B1 to the protocol (see p378) (5.2). o Sufficient info for the defendant to assess liability and estimate likely size and heads of claim (5.2) o Clear summary of the facts; indication of the nature of injuries; how these impact on Claimant’s day to day functioning; prognosis; financial losses (5.3) o Should NOT include Claimant’s NI no. and DOB. These should be sent to the insurer when they have responded (5.4).

LOC in accordance with Para 5.1.

Stage 2  Liability admitted – Stage 2 deals with valuation and settlement. Claimant Medical Report

 C obtains a medical report. No time limit.  Can only get one. Can only usually get further if it is justified.  When ready to value, C sends Stage 2 settlement pack to the insurer. o Should include:  Medical reports  Medical records  Photographs  Evidence of all special damages claimed  Receipts for dibs  Witness statements  Offers of settlement. Insurer Response  Insurer must respond within 15 days by accepting or making counter-offer (may be extended by agreement).  20 day negotiating period (may be extended by agreement).  If D’s Insurer does not respond, Claim exits RTA Protocol. Proceedings?  If D responds but no settlement = Proceedings. o C’s sol sends D’s insurer a Court Proceedings Pack (CPP). o Insurer has 5 days to check the pack. o D is obliged to pay C it’s final offer + Stage 1 and 2 fixed costs.  Offers to settle given at Stage 2 automatically include an agreement to pay Stage 2 fixed costs and dibs. Stage 3  Claimant issues Part 8 Proceedings.  Defendant must acknowledge service within 14 days.

 Para 5.5: CNF can be used as the LOC unless D claims there is a lack of info in the CNF.  Para 5.6: no further investigation on liability should be carried out until D responds. Defendant’s Response:  Para 6.2: D must reply within 21 calendar days of the date of posting of the letter, identifying their insurer. o If no response, claimant will be entitled to issue.  Para 6.3: D will then have 3 months from the date of acknowledgment to investigate liability.  Para 6.4: D should respond with o Their version of events o Documents material to the issues between the parties which would likely be ordered to be disclosed on disclosure.  Annexe C contains a specimen list of documents.  If C or D dissatisfied with level of disclosure can apply for Pre-Action Disclosure under part 31. However Para 7.1.3 makes clear that parties should assist each other to avoid this. Expert Reports  Para 7.2: Joint selection encouraged. o The Protocol promotes the claimant obtaining a medical report and disclosing it to the defendant, who then asks questions/agrees with it but does not obtain their own report. Process:  Before a party instructs, should give the other party a list of suitable experts (7.3).  Other party may indicate objections within 14 days of the list being provided (7.6).  The first party then instructs an acceptable one from the list, or, if none are acceptable, the parties may instruct experts of their own choice. The court will then decide whether either party acted unreasonably (7.7). Written questions may be put to the expert within 28 days of service of the report (7.9). Settlement  If D admits liability, C should send to D (8.1): o Medical reports.

 Court will assess damages; neither party is expected to attend.

5 Available Pre-Action Protocols in PI Claims

o Schedule of past and future expenses/losses (see also 10.1).  C should delay issuing for 21 days from disclosure of docs (unless any limitation issues) (8.1.2).  Parties may make Part 36 offers- should always “consider if it is appropriate” before issuing (8.2).  Parties must consider forms of ADR (9.1.1). o Parties may need to evidence this (9.1.3).  Failure to consider may result in cost penalties (9.1.3). Stocktaking + Proceedings? o Each party should stocktake i.e. review its positions if the PAP has not resolved the dispute (11.1). o C will then issue court proceedings if no solution.

 Personal Injury Claims. • Primarily designed for cases likely to be allocated to the Fast-Track, though applies to • Claims proceed under this protocol if claims exit any of the Low Value Protocols.  Disease and Illness Claims. • Used where the injury takes the form of an illness or disease e.g. asthma, dermatitis, mesothelioma. • Complex, so uses a specialist protocol.  Resolution of Clinical Disputes. • Used for claims against hospitals etc. Clinical Negligence Claims.  Low Value Personal Injury Claims in Road Traffic Accidents. • Known as “Portal” Claims • Applies where the value of the claim is no more than £25k. • And where the values for PSLA exceeds £1,000. • Circumstances where they may exit the protocol and proceed under the Protocol for PI Claims. • Fixed Recoverable Costs owed at each stage of the case.  Low Value Personal Injury (Employers’ Liability and Public Liability) Claims. • Applies where the value of the claim is no more than £25k. • Circumstances where they may exit the protocol and proceed under the Protocol for PI Claims....