Written and recorded by Nicky Carter, Solicitor
Hello on. Welcome to this Webinar on rt A e o p l Portal Tactics for success are my name's Niki Carter on. We're going to take a look at the latest position, really concerning the to portals that we look at the rt A. Paul's will look at the LPR portal. Running cases within the portal efficiently is always a challenge on one of the real challenges that moment is knowing when an exit is advisable on. Also, frankly, knowing when and lit on exit is legitimate. All exits clearly are not equal. We know that court decisions up and down the country, starting to clarify the fact that exits that limit claimant to portal costs on those arm or likely to result in fixed exit costs. It's important to know which is which on. That's one of the things we're going to be talking about, so we'll be looking at value are put in lower. Is it in? Is it out? Portal? Also want to take a look at full sex? It's this idea that there are some exits that are high risk strategies are for claimants who decide to avail themselves of them high risk off course in terms of costs. So that's the concern. Will look at ensure acknowledgement. Will look at earnings details in the e o p l process eel specifically. Well, look a payment of non settlement payments damages on. We'll look at payments of agreed damages on to, say, some of the portal wording is far from clear about which exits are available on which exits might involve you in extreme risk in terms off problems. The first thing I wanted to talk about really was CNF form filling doesn't sound very thrilling, but we do need to think about one of the things it seems to be beginning to be a problem on. That is the court's interest. Let's say in the detail of the CNF on the case, we've seen it in most clearly is case called cynical on global logistics. It was in a Warsaw County cool in June of 2016 and indication in the CNN, supported by a signed statement of truth from the solicitors, actually but signed in any event that there was in fact no claim for car hire charges. The little problem with that was a fact that walls playing for car hire charges on after a road traffic collision. Solicitors suggest in the claim form through the portal CNF, that there is in fact no claim for credit. Higher kite charges, however, never was the claimant. Asked about whether or not it had a hire car in any particular way. The sisters tick boxes indicating on We know it's a tick box system. The climate neither needed nor have been provided with an alternative vehicle. The form was supported by a statement of truth bizarrely enough to further claim forms were submitted in July and in August and again the same information was included. None of the forms indicated that there was a claim for car hire, But Klayman had been using a car, Ah, hire car since August, and the car hire company wrote to the defendants, indicating that there was indeed a claim. Call it, the defendants replied. But when they heard nothing, the claim went on to settle within the process. Stage to settle Impact indicated there was no car hire claim. Fresh list has come on the scene on start proceedings, frankly for special damages, including credit. Higher on this is the application by the defendants for summary judgment on the basis that that whole claim was misconceived was an abuse of the process on the fact that bin, if you like residue, did Carter. The matter had already been adjudicated upon. The court agreed the application was granted. The courts task was made more difficult by the claimants failure to file a witness statement, either setting out circumstances or giving any kind of explanation as to how the situation had arisen. Had the significant car hire claim been indicated on the claim form the defendants would have taken, they argued a very different approach to conduct of the proceedings. The court decided they were entitled to rely on that statement of truth. They were entitled to rely on that certificate signed by the solicitors, that there was no claim for hot car hire, a signed statement of truth by the solicitor on behalf of the kind to the effect that the document to which it was attached was both genuine Onda. Genuine reflection of the truth was something the defendant was entitled to rely upon in the instant case to go behind. The statement of truth on the claim form will be to go behind the whole spirit of the CPR, said the court on an abuse off the process for that car. High claim to proceed It really doesn't think hammer home that point that actually off Whatever you put on the Cup on the CNF is something that may later come back to warn you. Courts are not now averse to looking at Sienna. Taking a look at what claims were put forward in the CNF on it may cause problems later down the line when those difficulties of rights we've seen it in fundamental dishonesty cases. Frankly, the same issue arrive arise. That call interested what was said on the CNF early on once that was submitted. So I think the importance of what's included their week We can't underestimate, really. Let's talk about dates and values on. We know, of course, that in July 13 2031st of July, actually the upper living in the Altay, a portal, was extended to £25,000 just to remind ourselves that's only where the accident occurred all or after the 31st of July 2013 Um, for claims between 10,001 if you like, on £25,000. The trigger for road accidents between one and £10,000. Entering the portal is that the accident occurred between 38 2013 and 30th of July 2013. Inclusive. It's important that if your accident happened before the 31st of July 2000 and 13 for example, it could be a claim concerning a minor where limitation has either yet to begin or has recently begun. Then the upper limit for claims where those accidents happen before 31st of July is in fact £10,000 not the £25,000 that we see now. I'm so exit the claim where it becomes clear in a minus case, for example, that the claims now worth more than £10,000 if the accident happened before the 31st of July 2013 the key to the issue about value is really all about reasonable belief. What's not important is whether the claim and actually recovers more than, for example, £25,000. But whether the claimant had a reasonable belief that the claim was valued at between 1000 and £25,000. We know, of course, that in both portals, actually, paragraph 5.9 deals with this in terms. Actually, it says where the claimant reasonably believes that claim is valued between £27,000 but it subsequently becomes apparent that claim is less than £1000. We've got protection built in in both port is actually that the claimants entitled to the stage one and if it's got that far the stage to fix costs anyway. So it's important to note that for the claimant from the claimants point of view, an assessment off, a reasonable belief of value needs to be made at the point that CNF is actually submitted. I think one of the things that we know about this because we've seen it in case law on the case, I would draw your attention to this case, called J. C. On a solicitor's and take a Bow 2017 that went to the Court of Appeal to make the entitlement stage one fixed costs dependent on the claimant attending core on proving that reasonable belief, the court said would be a bizarre construction of paragraph 5.9 on the court went on to say the real purpose of Para 5.9 was simply to make it clear that a protocol claimants entitlement to stage one fixed costs was not lost merely because it turned out that came for damages was worth less than £1000. That's a pretty important indicator. I think if you've made a reasonable assessment off the likely pain suffering loss of immunity award and you've concluded that £1000 is realistic, that's sufficient to get you passed that hurdle, if you like, of your agreement, that is good enough on the burden if you like all the ball, if you like, passes to into the defendant school at that point because we know that in terms off spotting a small claim, the defendant gets two shots really at this slide, remind you what they are. First slot, paragraph 4.3. I'm rto critical. The protocol ceases to apply to a claim where, at any stage, the climate notifies the defendant. The claim has now been revalued Atmore. Then the protocol upper limit on then paragraph 4.2 e l peel protocal exactly the same. So where we got a situation where the claimant takes the view that the claim is worth more than where we kept the position with the claim. It takes the view that the claim is worth more than £1000 pain suffering the loss of amenity. What's clear is that it's the claimants belief that matters where we get a claimant who takes the view that the claim is now worth mawr than broke. Protocol. A protocol up a little claim. It's reasonable belief that's important. It will be interesting, cause t note, wouldn't it? What did the claimant actually achieved by the way off damages? Once the claim has, in fact, it's it. In the portal, you go and exit on the basis that claims worth more than £25,000 you recover £24,000. It might not be that difficult to argue that that belief was a reasonable one. If, however, you go to court and recover £10,000 it might be harder to persuade the court that your belief was a reasonable one. It's important to establish quite what we mean what we're talking about when we say that a case is going to exit as a result of being worth more than the portal upper limit. What we know is really important and we know it from cases like KEDO and ensure services of course appeal case from 2060 that the fixed costs regime on exit applies to claims which have been begun in but exited the portal for RT A's any DD appeals on which had been settled before formally being allocated to the multi track. Now queda is clear. You get yourself allocated to the multi track on exit. On that you may remember in KEDO the deal Really Waas. It's not that the claim was actually worth more than £25,000 but simply that there were arguments from the defendant about fraud and staged accidents, which meant that the climate Day Waas allocated to the multi track we know from Kedah that that allocation to the multi track is the Caymans ticket out off the fixed cost regime on exit. And he did we also know because it was clarified in KEDO that you know there is a possibility that even if the Clements came is in fact in the exit fixed costs regime, there's always Rule 45 29 j that so called escape clause, which enables the climate to argue. Maybe there are exceptional circumstances where the fox of the fixed cost regime isn't appropriate on where the claimant can argue that the costs recovered and indeed on assessment argue the costs incurred were, in fact mawr than those fixed costs that can successfully argue that at least 20% more is or was the requirement there may will receive those additional costs in exceptional circumstances. What we've seen and, needless to say, that was always going to bay. Uh, satellite instigation, Let's say, following KEDO cases like sculptures and Gibbs, which is on your slide from a few months ago in 2018 we saw a claimant seek to argue. Well, actually, I haven't actually being allocated to the multi track, but I have on exit, but I have actually got a notice of proposed allocation to the multi track. Is that enough to dis apply the fixed costs regime on exit? Short answer from the court? No, it isn't. Second question from the climate will. Okay, can I exercise my right to have the court considered the exceptional circumstances apply in this case on again? The answer was no. the court took the view that after KEDO, indeed, the costal was amended to include the phrase and for as long as the claim is not allocated to the multi track. No question, the court said, had the rules committee wish to include cases which would ultimately settled for over £25,000 or as inscriptions, which had been provisionally allocated to the multi track it would have done so it could have done so. It failed to do it. Are consequently, absolutely not. We know the answer on notice off proposed allocation is not enough to avoid the rigors off the fixed costs regime on exit. It just doesn't work. While we talk about satellite litigation, we also need to pick up cases like Great IQ and Clark Drain, which looks at another angle on fixed costs on exit. Another argument, if you like. I consent order. In this particular case by which the proceedings were settled on terms, including provision for costs to be paid, so called on the standard basis, did that overcome the mandate tree provision off Civil Procedural, 45. 29 d. This action had exited. One of the portals now did that mean that inevitably the claimants were stuck with fixed costs. Or was that assumption changed by the consent order that both parties had signed? The short answer to that was no, um, the consent order did not change the provision. You couldn't overcome the statutory fixed costs available under CPR 45 29 day just by signing a consent order with your opponent on a graying, if you like, for the case to be settled on the cost of the settled rather on the standard basis, it's not enough and it won't do to dis apply the fixed costs on exit Regime. Let's take a look now at the position in terms of fixed costs, where we've got a situation where the claimant originally sends the CNF with a reasonable belief in the fact that the claim is worth more than £1000 p s away. But it actually turns out at Stage three hearing that in fact, the award made doesn't clear the £1000 hood, I think in this case, if memory serves the amount was around £875. Stage three for the child claimant on the argument from the defendant Waas we shouldn't be paying stage three costs. And indeed, it was clearly a case where the claim was for less than £1000 when he was submitted. Interesting the way, the cool approach this really because I think one of the interesting things about fixed cost regime in the portal is that those costs are specific to each stage, off process and indeed from the courts point of view, the issue here, Really four straight streams. Very, very simple. Had the claimant beaten the defendant's offer, the climate had the claimant completed the hurdle they needed to complete retain stage three costs from the defendant. The issue really about whether or not became a could be criticized in this case, where recovery of the damages was actually less than £1000. PS today is a much more interesting topic on an interesting phrase I think was used by the court when looking at this. This is the phrase it could not be said that the instant came have been plainly for less than £1000. When it had was submitted on, the defendant had not taking a vulture of removing the claim from the cost regime went able to do so. There are two things going on here. One had the claimants list, has made a reasonable assessment of value at the point CNF was submitted. And two. What about these so called opportunities options for the defendant to remove the claim from the regime once they formed the view that in fact claim was not worth £1000 tool addressing the first point first. Clearly, the court took the view that the case would have to be obviously worth less than £1000 of pain, suffering a loss of immunity for this argument to work. The claimants listers have been widely and sensible indeed, in putting a written note on the file giving an opinion as to why they thought that it was clear that claim was worth more than £1000. This point on pain, suffering, loss of amenity that claim it was a child of an infant. There's been some upset some sleepless nights Cow Paul visits to GP on the climate, Sisters said. In their view, very young Children's reactions to accidents of this kind could deteriorate with time. So the first box was take. Let's take a look at the defendant lead exits, however, two opportunities for the defendant to spot the small claim if you like firstly on your slide 6.15 in the process. That claim will no longer continue onto this protocol, where the defendant within the relevant period in paragraph 6 11 in other words, depending on which protocol urine are possibly the 30 business days. If you're in the appeal and it's Neil Matter, possibly 40 business days, its appeal matter. Or indeed, if it's an auntie, a matter in the 15 business days that the defendant gets to respond to CNN, it's quite clear the claim will no longer continue. If the defendant gives notice to the claimant that the defendant considers if proceedings will issue the small claims track will be the normal track of that claim. So it's not a necks it per se. It's simply that the process he is at an end if the defendant indicates that that's their view at that point now all they go at that point is what the climate has just the CNF. That's the view they take. There's opportunity to call it out on the claim, will then accept second chance 7.39 and 7.39 is quite clear that the defendant gets their second option. If you like, the claim will no longer continue, says this paragraph. Under the protocol where the defendant has noticed the claimant within the initial consideration period, that's my bold in that slide. What's that? Well, that's of course, the 15 business days after the submission off the stage to second pack that slot of time. You we notice that sort of part time because, of course, that's one of the periods that can be extended by agreement between the parties. And indeed, the paragraph goes on to say, or any extension agreed under paragraph 7.33 This is what the defendant needs to say at this point. I, the defendant considers it proceedings were start started. The small claims track will be the normal track for that claim. This is the defendant's chance. Having seen the medical report having seen the losses to call it out on, argue that in fact, the claim is not worth £1000. Again, we see the effect of that call. The effect is the kind simply leaves the process, not our subject for today But you'll also see the option at that point for the defendant to withdraw their admission off. Causation at that point also is an interesting question to ask. And that is, you know, if you get an offer at this point in stage two by the defendant off less than £1000 for pain, sir, bring a loss of immunity is that the defendants are indication Notice that they think the claim is worth less than £1000 PSL a on does the claim, then automatically exit the process? You know, I'm tempted to say discuss. We don't know the answer to that question. I'm What is clear is that there are number off defendant lead exits are now. We certainly know there are a number of things that the defendant can do to bring about an exit of the process. We've seen to quite clear exit possibilities that can just simply that leaves the process an entirely But let's take a look at 7.40 Um, and this is addressing that period isn't say the initial consideration period. In other words, the 15 business days after submission of the stage to settlement, pack what we know is that the defendant is obligated if you like to make. I'm also to respond with a proposal in this period on that if the defendant doesn't do that, then the claimant may exit start proceedings there is on slide 7.40. The defendant doesn't respond within that initial consideration period. That claim will no longer continue under this protocol. On that claim, it may start proceedings under Part seven off the civil procedurals. It's interesting, I think, that this clearly marked exit let's put it that way obligates the defendant to do something. Either accept the claimants awful, make enough of a counter off the off their own at that point on that, if that doesn't happen, then the claim will simply leave the process. So there are options from the claimants point of view. It's not a question of an exit. Even here, of course, on the claims simply does not continue that it's up to the claimant whether or not start Part seven proceedings in that circumstance, let's clear our some off the exits that suggest that perhaps it's not written in the protocol that perhaps some kind off tit for tat negotiation is required on the claimants in a case called Paul and Guardia came on stuck a county court matter back beginning of the process in July 2012 where they argued that the defendant should have I made an offer in response to the claimants counter offer within that total consideration period. Now what we do know is that the only offers that are compulsory is one from the claimant on one from the defendant. Certainly the failure by the defendant to respond, if you like to account offer just isn't there. There is no requirement for the defendant to respond to the kindness counter offer on in that particular case, the claimants listers. Having racked up, I think about £20,000 worth of costs in Part seven for having done so absolutely was not something they were going to recover. And indeed, the claimants were ordered to pay the defendant's costs on an indemnity basis in those circumstances. So the clear lesson, I think in cases like that is, if it isn't in the process, it isn't in the protocol. Don't assume that, for example, on encouragement to engage in negotiations, engaging offers is within the process where no in the civil procedurals. Now, this is a whole different territory. I called the next slide false exits for good reason. Really. The reason, really, is that there are certain parts of the portal that use words that suggest that there are actions that the defendant must take. Um, if they don't take those actions were do we assume there's some kind of sanction in place Now you think about sort of background in the civil procedurals where the civil procedure rules you the work Must they mean it when the protocol uses the word must, the protocol doesn't really mean the same thing. A good example is 6 10 on your slide, the defendant must send the claimant on Elektronik acknowledgement the next day, after receipt of the Cnet, the defendant must complete the insurer section off the sand, have consented to the claimant within 15 days. Business days. Of course, what happens if that doesn't occur? What happens if the defendant doesn't do that? We had a real reminder in a case called Patel and Fortis Insurance again back in the early days of the process the rt a process off what I've called radio I would call the sanction Lis, must you know the fact that there is a must in the process? The word used his must, and yet it seems to be toothless. The claimants in patella forties argued that the defendant, insurers failure, aren't to acknowledge the insurer, but to acknowledge the CNF apologies within the 24 hour period for felt foul of paragraph 6 10 Ana indeed, you know, replying, responding with the full insurer response within 48 hours rather than 24 fell foul of the process, and they were in Tuck to remove the claim. On that basis, the court held that that was not the ground removal and, indeed who check out the relevant paragraph in the protocol. It certainly doesn't suggest that exit is an opportunity with hasn't happened on. We get this reminder from the core party should not lightly remove claims from the portal and should never do it on technical grounds. Now that's a difficult concept to grasp, I think, And the reason it's difficult is because, of course, sometimes claims are removed from the process on exactly that technical grounds. If you haven't had your stage with fees paid in the requisite time period, if the defendant hasn't responded in the requisite time period, we get a reminder here that where the exit piers perhaps, let's say to the optional the claimant is going to need to exercise a little bit of caution on, Decide whether it's wise, whether it's something they are going to decide merits and exit. Let's take a further look at sanctioned. This musts on the one I picked is agreed damages, and I reminded you on the slide. 747 in process that, except with a changing climate, child, the defendant and the words the same must pay the agreed damages less deductible amounts under the sea. Are you less previous? Interims. Any unpaid stage one costs stage. Take costs figure in respect of called him advice. If it's justified on the relevant disbursements within 10 days of the parties agreeing a settlement, it sounds pretty straightforward on the view. Being well must surely indicates that there some sanction. If this isn't done again, check out the process. Check the protocol. There is no sanction for failing to pay those sums up at the requisite time period. Just simply nothing on it isn't clear what the claim might be able to do if those sums on PIDE by the same token, non settlement payments or come before the courts on again, we've got another our confusion. The case of Smith and Owen in Birkenhead in November 2016 looked paragraph 7 70 of the process, except where the climate is a child, the defendant must pay to the Klayman on. Then we get the list of things they must pay the final offer of damages by the defendant. Off proceedings pack part A and part B, less deductible amounts less previous interims, less unpaid stage one and stage to cost on the dispersement. And we know that those sums must be paid to the claimant. Now the question that arises, I think, really is whether or not if those sums are not paid. And in the case, that's methadone. It wasn't they were paid on time. It was that they weren't paid in the correct amount. The defendants had neglected to include a D. V. L. A fee of £2.50 is the claimant entitled to remove the case from the process. For that reason, the court took the view that in the case of Smith it wasn't reasonable for the claimants to exit for failure to pay the correct amount of money on again. The court was able to do a ah balance she exercise on toe. Argue that frankly, to incur fees or costs, let's say of thousands of pounds for failure to pay a £2.50 d V L. A fee is simply no reasonable. Certainly the court took the view that it wasn't proportion er on indeed made the comment. It wasn't in the spirit off. The overriding objective was interesting because, of course, the overriding objective relates to court proceedings in Part seven and in the civil procedurals, not the portal at all. If is not mandatory for the claimant to exit, the claimant has to take a view about whether the exit from the process is reasonable or not and will be judged on that decision. By the same token, the obligation inhale claims for the employer to give details of lost earnings 7.9 within 20 days of the date of the admission of liability. I'm provided these details to pray for the loss of earnings again, must is the word used and yet there is no sanction where a defendant has failed to take action. The summary from this has to be where there's no clear sanction but where the exit. Even if there is a clear sanction outlined everywhere, exit and consider the reasonable is at the exit at all times. Look at the overriding objective look at the party's obligation to cooperate on. Look at the principle that proceedings are always to be considered our last resort. Unreasonable exit from the process will result, and the application or fixed fees, the portal fees, whether you've spent more or not. Lastly, I just wanted to take a look at an important decision. I think Case called Mulholland and Hughes came along in 2015 where the climate argued three things. Firstly, must the defendant raise an issue a Stage two rather than saving the point until apart? Eight Hearing. Secondly, if you want to raise an issue, for example, such a need in respect of car hire, Stage two is the time to do it and that to make an offer in respect of higher charges, what's not to admit the need for higher but not to challenge that need? Stage two was equivalent to saying to the claimant, the defendants saying to Clayman that the claimant didn't need to formally prove that the court held that a stage to offer is no more than an offer. So offering a certain amount in respect of car hire certainly wasn't a guarantee to the claim that they were going to recover at least that amount clear advice in this case from the court that the insurer is. It stopped from raising fresh fresh issues here in relation to replacement vehicles at Stage three Andi that a non settlement payment is indeed on been an interim payment. By all accounts, Andi is governed by Part 25. The claimant may have to repay the difference if they go on recover less. We got all those principles confirmed in a case called the Honest and Clennell in Middlesboro in October of 2017. On its particular case, an interesting twist on all Mulholland. The court decided that a party was not entitled defendant to raise issues at Stage three in their acknowledgement of service if they know raise those issues earlier during Stage two. Now we know I have always known the approach was very clear that claimants ComRes fresh issues Stage three that they haven't introduced at Stage two. It's nice to see the court deciding that there's an even playing field on that. Actually, defendants have the same problem. If the defendant has an issue with the higher charges, for example, whether that's duration need in peculiar city or rate or, indeed, enforceability, those matters must be raised at Stage two. If they're not, the claimant is entitled to assume those matters have been agreed effectively on that the climate won't be called upon to prove those matters. That's the end off our webinar hope it's been helpful. Andi, thank you for listening.
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