Hello. Welcome to this. Webinar on rt A e o p l Portal Tactics for success number two What we want to talk about this particular webinar is the defendant. Lead exits are failure to pay costs, exits, interims tactics, exit opportunities on the exit opportunity. I'm going to call it Styled up has not suitable for the portal. What does it actually mean? What's included in it? Now we know that there are a number of instances where the defendants failure to pay costs on time at the appropriate moment will lead to a situation where the claim may not continue on to the protocol. Now, this is one of the exits where the claim it gets an exit option on the option is quite clear. Includes a notice period whereby the claimant has a 10 day window, if you like in which to tell the defendant that the climate has decided the comb is going to exit the process because of the failure to pay the costs on time. Let's just examine the situation now when it comes to when the defendant should be paying the stage one fixed costs, it's scaled up. Styled up in 6 19 as within the period specified in paragraph 6 18 we'll check out 6 18 We know that that obligation is event. It must pay the stage one fixed costs the cost of obtaining the fixed costs. Medic ripple If it's a soft tissue claim and any costs for obtaining medical records. In other words, the stage one fixed recoverable costs where liability is admitted. Well, liabilities admitted in corn. Negus alleged only in relation to the claimants failure toe wear a seat belt and as they admitted for you, that period of time for pay up is within 10 days after receiving the stage to second pack on. That's provided the invoices for the cost of obtaining the medical report on any medical records in soft tissue entry claim are included in the stage to settlement. Pack what we knows. This is one of those exits where unless the claimants notice is sent to the defendant within 10 days after the expiry of that period, the claim will continue on its protocol. Now, clearly, that doesn't give the defendant an extra 10 days to pay up. But what it does give is the claimant the opportunity to decide that payment failure is enough to merit exit on, the claimants decided the exit is the appropriate way to go now. I think one of the things that's important to be clear about in terms of payment periods is that the portal clarifies and sorts out actually the period during which the sums are to be paid in all payments, actually so paragraph 5.6 and protocols. The protocol is clear where the practical requires the defendant to pay an amount within a fixed number of days. The climate must receive the check or the transfer of the amount from the defendant before the end of the period specified in the relevant provisions. So you should receive that money by the end of that period. It's not good enough if the defendant simply says, Oh, well, it should be there in a few days there. After all, we're hoping it were there a few days after that. It is quite clear exit notice. Opportunity arises for the claim and the claim. If you don't do anything as came or will simply continue, we know that most of the time, the better option for the claim and is an exit from the process the better option in terms of costs, recoverable re exit from the process and that may well be the appropriate way to go. But it is an opportunity is an opportunity for the claimant to give notice on to call out if you like the defendant's failure. The next area where there is a set of options, if you like for exit is surrounding the possibility off an interim payment on request for an interim payment. Now we know. But the claimant in within the process has two options. Really, when it comes to a request for an interim on interim payment off £1000 we know that unless the parties have a great otherwise and remember, the parties may agree otherwise, that £1000 is only in relation to general damages. That's option one, if you like, or the possibility that our request will be made for an interim payment or more than £1000 on that the amount over and above the 1st 1000 is only in relation to pecuniary losses are really emphasized that pecuniary losses part off the equation, but cause it's not in respect off sums that the claim of may have to be paying out later, maybe for rehab, that sort of thing. It is actually for amounts of the claim that's actually lost. Now let's take a look really, at the surrounding provision for making this request on the way to do it is covered by 7 14 on the climate must be sending the claim of the interim settlement. Pack Andi the initial medical pool. Now that's quite clear. The defendant's entitled to that initial, if you like medical report when having to consider whether or not they're going to make their interim payment on. Indeed, the absence of that medical report may mean the defendant's justified in refusing to do so. The common also needs to send evidence of pecuniary losses on dispersants on again. The defendants, given that information to help them decide whether or not they're going to make the interim payment or no. It's quite clear that slightly different provisions arise where an interim off mawr than the £1000 it's requested and will take that request separately. If you like on. Certainly, if it's more than £1000 it's clear that the climate must specify in the interim settlement pack. How much has requested the heads of damage. Which other subsidies subject of that request on the reasons for that request were a very long way now, from Part 25 of the civil procedurals, where issues of need and issues of the claimant having to spell out what they want the money for are simply no relevant. They are here on the climate, must spend out what the items are, Why the climate request the entry in payment. Now let's take a look at the possibility First possibility, and that is that the claimant may be looking for an interim payment off £1000 on. We know that the claim will send that initial medical report. Don't forget, it should include the suggestion or the requirement that are further medical report be obtained, so we know that it needs needs to contain not, ah form prognosis. But a conditional prognosis say that the defendant can make a decision as to whether money is to be paid out on certainly 7.8 in the opening protocol. We get this indicator if you like that. A subsequent medical report from someone who's already reported might be justified where the first report recommends for the time before a prognosis can be given. The claimant, perhaps, is receiving continuing treatment or the claimant hasn't recovered as expected. In the original prognosis on, We know that those reports on the recommendation that subsequent reports are needed has to go off in the interim settler pack. If your expert hasn't indicated they want to see the common again, well, they should seem the climate again. Make sure that's in the report. That's your ticket, if you like to your request for the interim payment. The idea is that that's going to provide the insurer with information necessary to make an interim payment £1000. And it is quite clear from the provision that the defendant, if they decide to do that, has got 10 business days from receipt of the interim settlement pack to make that payment will talk in a minute about what the came we could do if it isn't done from. Remember those 10 business days? Our business days? That's quite clear on that time starts taking the day after the information is sent to the defendant, provided that's a business day. Let's take a look now, the second option on the interim from, and that's the possibility of an interim payment off more than £1000. Now. It's interesting that we we know that in claims where the claim itself is valued at more than £10,000 that climate can use the procedure to request more than one interim payment. And again, that calls pretty well with Part 25 of the rules, where the possibility of coming back on going from or one interim is entirely real. It's in part 25 to certainly the climate's going to need to spell out. Firstly, what's the money for? What is the request and respect off in excess off £1000 on certainly the defendant's obligation if you like to pay it. But this time, remember, it's within 15 days of receiving the entrance settlement pack, where more than 1000 is asked for. The defendant must pay the full amount requested lesson. He see all you the amount of just 1000 or some other amount more than 1000 but less than the amount requested by the claimant. But all of that has to happen within 15 days of receiving the instrument settle impact. What if the interim payment is not made in the requisite time period. Well, 7 to 8 says where the defendant does not comply with paragraph 7 18 or 7 19 that climate may start proceedings under Part seven on apply to the court for an interim payment in those circumstances. Now that's the request. If you like that on interim is made off Mawr Van. £1000. If you're looking for more than £1000 the possibility is that you can. We're not receiving the money. Go to the court and make an application for an interim payment in those proceedings, and that will be under Part seven. That's all based on the idea that you've got an interim payment, but they do take the view that it's not enough. So the defendant hasn't complied on claims, not content with the amount paid. Note that the court is going to judge the claim and under 7.29 on whether or not the defendants to pay more than stage to fix costs on the basis of the result of the interim payment application the claimant has made. So if the court awards an interim payment gnome or than the amount offered by the defendant or the court makes no award, the climate will be stuck with portal. Costs are now. It's worth noting that in either of these situations, either failure to pay on the 7 to £8000 or 7 to 9 more than £1000. But climate must give notice for this exit. This is just the same as the costs. Failure to pay notice needs to be given on. It's the same provision. Notice is sent to the defendant within 10 days after the experience fiery of the period, either 10 days in. It's £1000 or 15 business days if it's more than £1000. Unless that notice is given, the claim will simply continue under the protocol. So exactly the same way that claim it has the option, If you like to call it out. The option toe argue that, in fact, the claim needs to come out off the process because of that failure to pay. Note that to help you decide if you like is the claimant. Whether or not that's something you want to be doing. Seven point 19 makes it quite clear that the defendant needs to explain in the interim settlement pack. If it's a question of all the £1000 why the full amount requested by the climate is not agree. What's the reason? What's the reason the defendant gives for failing to pay the full amount that the climate is looking for? Note that if the claim is worth more than £10,000 this procedure, as we said before, can be used more than once to request more than one interim payment on you know certainly came continues with uncertainty about prognosis. It may be that the claim will decide that more than one interim payment is going to be necessary. Note that, weirdly, the portal won't allow you to print the interim settlement pack, and you might need to screenshot that interim segment pack and send it to the client, or to take clear instructions from the client about what it is that they want you to do. It's important to note that you need a clear indication from the claim and about money that's wanted, and you need a clear indication as to what it is the claim is going to do with the money. A couple of things on interims certainly in relation to Children. We should just say child claims again. The obligation to pay interim payments in this way just doesn't exist in the sense that you can certainly ask for an interim payment for a child claim. But failure to pay will not be a reason for an exit. Remember, even an interim payment in a child's claim will need court approval. Eyes just not going toe work within the process tohave an interim for a child's claim. In addition, we need to say something about vehicle related damages. Claims says Paragraph 7.23 of the process for vehicle related damages will ordinarily be dealt with outside the provisions of the protocol. So on the industry agreements between the create higher organization and the insurance. But in the one situation where the claimants paid for the vehicle related damages themselves, that some may be included in a request for an interim payment under paragraph 7 16 So the issue the cheque is, has the climate paid that amount of themselves for vehicle related damage? If they have, then it may be legitimate to make an application for an interim payment. We see from the case of impressive all on issue or services that the entitlement to that interim payment for the climate for vehicle related damage sometimes called additional damages and indeed, protocol the protocol calls it additional damages only arises where the claimant has themselves paid out for that head of loss. And in the impressive one case, that claim of the court decided was not justified it coming out of the portal where defendant failed to make payment for an interim payment within the requisite time. The entitlement for vehicle related damages is only relevant if the claimants actually paid out. So if an interim payment for normal damages is not paid in time that came will be entitled to leave the portal start Part seven. In this case, Mr Impress Alarm hadn't actually paid out for those Kyle at the car repair fees. Consequently, he couldn't rely on the defendant's failure to comply with a request for an interim, and it was unreasonable of him to leave the portal in the way that he did. Let's turn now Teoh other exits on Let's look at the possibility, and indeed it is listed in the protocol that you might choose to withdraw your offer after the consideration period on our 7.46 makes it quite clear where a party withdraws an offer made in the stage to settle my pack after the total consideration period or further consideration period, that claim will no longer continue, and it's protocol on the climate may start proceedings under Part seven of CPR now, one of the interesting things about why you might decide to do just that is it cause consideration of fear. I guess that your offer, still sitting around in the process, might be capable of being picked up by the defendant later. If the claim want to leave the process similar to the way that perhaps the defendant might pick up for, ah, Part 36 offer that's been left lying around now, One miss I think about that is that it is only when your offer is included on the court proceedings. Pack that it morphs into our protocal offer. As such, it's only that point that it becomes a protocol offer, and it's only at that point that any costs consequences may flow from it. Any offers made stage to settlement pack Period two and froze at stage two until there on the court proceedings. Pack are not protocol office pursuant to Part 36 2nd section of artwork. Six off the rules. So those offers are going to be subject to the usual rules. If you live in process on that is that they are open for a limited time. We know from case law that once the case has exited process offers that were made within the process simply expired. It's a bit like called back offers. They simply expire when the claim leaves the process. The question here is so slightly different. One and indeed, I guess we can't blame the claimants for trying in case called He, er, he and Guzman. Early early days of the process, the claimant solicitors decided that actually what they would do routinely was to withdraw their stage to settlement pack offer, leave the process and argue that that was a legitimate reason for collecting their part. Seven costs his honor. Judge Platt did not agree. Aun said that effectively, he concluded, the climate's real reason with for withdrawing the offer was to take advantage of the cost implications of a Part seven claim. Clearly ah, higher cost liability for the defendant. The court decided that this was a manipulation of the rt, a procedure by the claimant on simply because the claimant decided to withdraw every stage to supplement, pack offer on leave and start part seven waas. Unreasonable exit. I'm from the process and the claim A balls landed fixed. However, you want to put it with the fixed costs that they would have received within the process. One of the questions that remains really is and both processes thes e appeal on the Altay. A process has. This provision is the provision that says, where the climate gives notice to the defendant that the claim is unsuitable for this protocol on an example is given, it says, for example. But cause they're complex issues of fact or law, then the claim on a local continue. Under this protocol, we get a reminder that the test for this exit is one of reasonableness. So where the court considered the claimant acted unreasonably in giving the notice no more. The fixed costs will be awarded complex as an example is not a fixed term. It's relative term, isn't it? Some claims are more complex and others on, so we need to think about complexity in terms of what makes it unsuitable for resolution within the protocol. Onda. Presumably, we have to think about resolution at Stage three hearing It doesn't really mean that a case needs to break new ground, or some new legal principle needs to be identified or resolved. All that they want to be a three day time. Esther, for estimate for it before it likely too complex for the process on the example. Given us the wire claim my exit. The protocol is because of extra issues of fact or law. Now, certainly, we know credit higher claims often require disclosure of a claimants, financial circumstances, bank statement and the like rates evidence cross examination on. Certainly, we know that in terms of evidence on practice Direction eight b, it's Stage three hearings on insurer can't file evidence if the climate which to which is to put in extra evidence. A seven point to the case will continue as a part seven claim. So the key, in any case with insurers, raced issues of fact law off. Sufficient complexity to justify on exit is to work out whether the context, the complexity of law, in fact, means resolution by State Street hearing is just not going to be realistic. Which ones are properly? Which issues could be resolved at Stage three on which just simply can't a good example of this in action is the case called Mary and Haven Insurance in Birkenhead County Court. In January 2014 the court took the view that the Claimants listers decision to exit the protocol after the defendant's insurers made pre made offers direct to the Klayman in breach of the protocols, very often on a letter of it, really without regard to the fact it instructed solicitors. Waas reason enough to leave the cool required to determine costs after awarding general damages in Part seven proceedings looked at the history of this, where a premed offer was made directly to Mr Mary. Some of £2000 directly to him Climates List has asked. The sure is not to contact him again. The insurers indicated they intended to do just that. The claims sisters exited the process on the basis the claim was no longer suitable for determination in the protocol. On what was interesting was that the climate went on to recover just over 3.5 1000 just over 3400 I should say pounds. In respect of his claim. Clearly, the £2000 offer was under attempt under settle his claim. I wasn't an unreasonable exit. The insurers argued that they were perfectly entitled to approach the claimant direct. They argued they could make off was in any way that they chose Aziz. Long as the overriding objective supported that Andi, they argued that in fact, climate had prematurely issued proceedings. In any event, the decision in this case was that the insurer had acted unreasonably in attempting to settle our manipulate. You like the protocol procedure to settle direct with the climate. This was country to the protocols spirit. Really interesting to know that the court really struggled to find chapter and verse off the bar on defendants contacting claims directed protocol they couldn't find it on. In fact, the nearest they get to it really was to chart paragraphs 3.1 paragraph 3.11 paragraph three but 13 paragraph 130.5 point one all who talked about the various ways in which communications to happen in the protocol, none of which actively bar defendants from contacting claimants direct when they got sisters acting for them. But the court decided that this was country to the protocols spirit, if not the letter on certainly country to the overriding objective off the civil procedurals rules, and it wasn't unreasonable for the exit to happen in that way. Interestingly, the court reminded the defendant off what the overriding objective actually is. And that's to deal with cases justly on a proportion of costs. No quickly. And it's a lower cost. That wasn't the intention. The claim it would have been under compensated had accepted the low early figure. I think this is a really important case because it's opportunity, really for the court to look at this practice off direct contact between insurers and claimants at the insurer's behest on argue that in fact, that's the kind of conduct that makes a case on suitable for determination. With the protocol, I'm just out of interest on the premature issue argument the court described. The claimants are issue has not premature. A tall on the court took the view that actually it was perfectly reasonable of the claimant to start proceedings on. It was only after the proceedings has actually been started that the defendant made any offers a tall, so it certainly wasn't premature to start proceedings after the case left the portal on the topic off direct approaches to claimants we've seen in the Supreme Court. The Gavin Edmondson Sisters in Haven case, where the Supreme Court confirmed that's listers have a remedy to recover cost when insurers go to the climate. Direct six claims for compensation after RTs, in which the claimant entered into CIA phase with the law for solicitors, submitted the claims in the online portal. But the defendant insurers made off his direct to the climate and the claimants accepted the claimants, then canceled their CF A's depriving the sisters of about £12,000 infects costs that they would have received Have the claims gone through the portal. The Supreme Court grade. The sisters were in talking to recover the costs and indeed, law Bricks said the RT A protocol was designed to provide security for the sisters. Charges on fixed the costs recoverable, therefore reflecting if you like the balance are struck by the voluntary nature off the protocol. One of the things that is important to note is that at paragraph 7.26 and the protocols provides that stage to several packs must be sent to the defendant, including evidence off pecuniary loss. What is that evidence? It's important to note that includes things like receipts, invoices on other similar matters of proof. Um, it's material provides confirmation of loss on a basis for valuation of the claim. He doesn't mean to encompass relevant material, which might forward escape of standard disclosure, for example, bank statements or contentious witness statements that might form the basis for evidence of G for cross examination at a contested trial. It was contemplated then that would have been included in the protocol. And it isn't that detail this season. Mitigation and arguments, for example, on evidence are not contemplated, and there really isn't any scope for the insurer to serve evidence country. To the claimants, evidence is just no provision for a forensic trial of strength at Stage three. So it's a paper exercise, which is what's envisaged on where parties disagree on evaluation. They can see the court's judgment before we move on. We need to address the issue of vehicle related damage on this really is the one time. If you like where the claimant gets to amend the stage to settlement pack, it's clear it's 75 to this is in the rt. A protocol that where paragraph 7 45 1 applies i at the end of the relevant periods. The original damages the P I hasn't settled on. There's vehicle related damage being dealt with by 1/3 party separate from the claim. The original damages include all elements of the claim in the existing stage to settlement pack thoughts where there are additional damages, vehicle related ones. The climate must notify the defendant. This separate kind is considered. Obtain all the relevant information from the third party on Make a set for offer and this is the paragraph. By amending the stage to settlement pack form in this one way amendment can happen within 15 days of that offer, the defendant must either a great will make a counter offer on the counter offer would need to address why the amount is less if indeed it is. I'm so it's interesting that it's important that it's identified that this is the point where the claimant gets to include the vehicle related losses in the claim. And we saw in the first part of this webinar Siri's that not doing so if there is a car are playing for car hire. Originally in the stage to settlement pack mining, ah claimed, struck out for an abuse of process. Later, if ah car hire company comes longer, decides to pursue the claim after the claims settled in the portal unsuitability for the protocol generally, what might that mean? Well, perhaps defendants serving part 18 requests in the protocol. There's nothing in the protocol about the ability of the defendant to serve apart 18 requests. If that's done, the argument would be it would be unsuitable for the protocol asking for the disclosure bank statements. Again. The possibility remains that that makes the claim unsuitable for resolution protocol. Putting forward alternative high rates evidence within the protocol again, no facilities for the defense to do so on a need to do that might make claim all suitable for the process. Requesting medical records, full sets of medical records. The portal is clear. The medical records that are disclose herbal on that's those that the medical expert thinks are relevant. The defendant will already have had those fateful Mawr. The argument would be that the claim may simply just need to exit the process. We know that witness statements are now a possibility in the process. 7 11 rt. A protocol makes that clear. One or more state statements may be provided where it's reasonably required to value the claim that's going to be necessary and important. If there's a care claim on what you'll need to ensure is all of that's included in the settlement pack, it's important that it is. In most cases, the portal is clear. Our report from a non medical expert. Let's say unemployment expert, for example, is not going to be something that's required. But again, the protocol has envisage the possibility that it might happen. A report might be obtained where it's reasonably required to value the claim. Paragraph 73 applies to non medical expert reports as it applies to expert medical ripples. So you may find the forensic accountant. The employment consultant is a report that you're going to need. The fact that you need one. A tall will clearly not be enough all alone anyway, for an exit reason. The difficulty, of course. Maybe that if it's the defendant who wants that document wants that report. They may not be able to rely upon it because of the limits on the ability of the defendants to introduce evidence of their own. But be wary if the only reason you think you may need to leave the process is the need for a non medical expert report. That may not be enough. And it may be that the argument from the defendant will be well. The process allows you to obtain one. In any event that takes us to the end of that particular webinar. Thank you very much for listening. I hope it's been useful.
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