A comprehensive guide to the very second stage of the Employers
Hello and welcome to this Webinar on the pl pl portal stage two process. My name is Nikki carter and hopefully you had an opportunity to see the first one of these portal guides the Stage one guide And we've got a further one To follow at the stage three guide. Um I want this time to focus on the provision at stage two and look at what's needed and what it is we need to be doing and some of the challenges that Stage two brings firstly. Of course this is the time isn't it for collecting together the evidence for the claim. So I want to talk about various ways in which we might do that. I want to talk a bit about rehabilitation and the possibility that the claimant might find themselves possibly criticized for failing to mitigate their loss in terms of rehabilitation, we know it's very common for the insurer for the defendant to offer rehabilitation. And I wanted just to talk about the options at that point for the claimant and the opportunity to obtain their own rehab or whether they're obliged to take up the offer if you like, a rehabilitation from the defendants. We also need to get the claimants losses in order and sorted out. So we need to think about the way in which we're going to present that evidence. How can we put those losses together in the most effective way and you know, do we need to obtain witness evidence which of course the protocol suggests is something that won't happen in every case. When is that going to be useful? I want to talk about the opportunity for interim payments at this point of the process and what we know, I think about the extent to which those interim options may lead to an exit and try to nail down when those exits will be considered reasonable exits because that's quite a challenging topic. We'll talk a bit about exits in general, we'll talk about putting together the settlement pack and considerations that pop up at this stage. Is this really or should this be a small claims track case? What about disputes in relation to causation at this point? And you know, what goes on at stage two, is this the point which the parties ought to lay their cards if you like on the table, what opportunities might there be to add additional evidence, more evidence at a later point. Um and I mean that both for the claimant and the defendant, actually We'll talk a bit about the 35 day total consideration period that that gap If you like. Um before stage two can move to stage three, that transition period as I said, this webinar Won't deal with stage three, we're doing that in a separate presentation, but just that segue between the two stages, we'll talk about offers and the tactics that might be deployed by either party actually when it comes to offers, we'll talk about settlement timing in respect of that and of course non settlement and the possibility or the reality of a non settlement payment and what that actually means. Um We'll say and it will thread through everything we say I think you know we'll address the idea of exits. But I think also we need to consider the circumstances when maybe the client's best interests would be served. Bye Leaving the Protocol and starting part seven proceedings. We'll talk about cost recovery, not the least of matters and ensuring that we get paid. I think the first thing to note about this stage, stage two of the process is that this is where there is a slight difference in the way el and pl claims are treated. So in an eel claimed scenario You'll see at 7.9 on your slide that the defendant has an obligation in respect to providing earnings details to verify the claimants lost earnings when if you have an opportunity to see the stage one webinar what you'll recall is that we talked a bit about the difference between L. And P. L. And not just the obvious ones where we talked about response times. So for an L. claimed the defendant having 30 business days, response time for A pl claim, it's 40 business days and we talked about how important it was to be clear what kind of claim we had. But in addition this is another reason to be clear because it's only in an eel claim where the defendant has and I don't know how else to put it really an obligation. Let's use that word um To provide within 20 days of the date of admission of liability earnings details to verify the claimants loss of earnings. Um what's important to note about this despite the use of the word must, which suggests some sort of obligation on the part of the defendant. We can search through the protocol as we will, but there is no sanction, no specified sanction if the defendant does not do this. And I think this is one of the things that we've got to sort of appreciate. And as more and more of the satellite litigation comes along, we see it more often that, you know, while some of these requirements in the protocol suggest compulsion I. E. The defendant must is a pretty good clue for that. We need to remember it's not a practice direction, It is in fact just a protocol. And you know, if the defendant fails to take that action from a claimant perspective, we need to be clear that it would be extremely challenging to leave the protocol for that reason alone because there is no set route out the protocol for this failure. And the likelihood is the court would refer to the overriding objective and would take a look at how reasonable it was for the claimant to have left the protocol just simply on that basis. Clearly it's a question of degree and if your earnings details don't come and don't come despite numerous requests, the climate may have little alternative but perhaps to make an application, for example for pre action disclosure in order to get hold of the information. But leaving the protocol for failure to comply with that time period would be a high risk strategy for claimants in terms of criticism for leaving the leaving the protocol unreasonably and all the cost consequences that that brings. We know that this is also the time for gathering medical evidence and it's anticipated. And indeed the protocol makes it clear that now is the time to think about obtaining a medical report claimant and acknowledges that this might already have been done if one has not already been obtained and you know, if you're new to the LPL protocol, in fact, any of the protocols, you'll be aware that the gathering if you like of medical evidence is a very one way street in the protocol. It is all the claimant. Um The defendant doesn't have the opportunity within this process to obtain their own medical evidence. Um We see an acknowledgment within the protocol that it's expected. Most claimants will obtain a medical report from one expert but additional medical reports can be obtained from other experts where the Injys require reports from more than one medical discipline. You know the idea I guess because of the value is that in case is worth no more than £25,000. The thought process is well, you know, chances are it won't be very many cases where we'll Need medical evidence from more than one expert. Um one thing that's very important once the medical report is obtained is to ensure that the claimant has an opportunity to check fact check if you like the medical report before it's sent to the defendant. Because it's very clear in the process that there is no further opportunity for the claimant to challenge the factual anyway accuracy of a medical report after it's been sent to the defendant. So, you know, claimants need to be aware that it's really important. They read it carefully if there are errors that those are taken up with the expert before that report is disclosed. I think I'd also want to add at this point. Again, just to make an Analogy, I suppose with the part seven world that medical records are dealt with specifically In the protocol at paragraph 7.4. And quite an interesting provision actually in relation to medical records because we get a very clear indication of what is expected that the medical expert should identify within the report, the medical records that have been reviewed and the medical records considered relevant to the claim. Um It goes on to say that the claimant must disclose with any medical report and picking up the unfortunate terminology. Um I assume that what's meant here is not just disclosed, but allow inspection of um any medical records which the expert considers relevant. Uh that makes sense only because what goes on comes next relates to photographs and any relevant photographs of the claimants, injuries on which the claimant intends to rely should also be disclosed with the medical report that has to be inspected or inspection is allowed. So clearly. Then the only medical records that are going to be relevant are those that the claimant's own medical expert considers relevant and they're the only ones the defendant is going to have access to. There is no opportunity for the defendant to make a choice or take their own view about what's relevant and what's not and indeed have access within this process to the claimants, medical history and any requests of that nature uh make it quite clear that the process is not a Suitable one for determining the case in issue. So defendants who want access to the claimants medical notes and records would need to think carefully about whether this is a claim suitable for protocol determination there is no facility within it for that kind of disclosure. Um Certainly subsequent medical reports are addressed within the process. And again, subsequent medical report is referred to as a report from an expert who has already reported. And that's considered to be something that may be justified. And then we're given some circumstances in which the protocol says it may be justified and these are the circumstances firstly. And first medical report recommends further time required Before a prognosis can be given. 2ndly, maybe the claimants obtaining receiving further treatment. Or thirdly that the claimant hasn't recovered as expected in the original prognosis. Um I think it's important to know that those three examples are little more than examples. A report may be justified where and those are the suggested circumstances. There may well be other circumstances where a further report from the original expert is anticipated and that aren't set out in those three examples, but be conscious that where the term subsequent medical report is used, we know that it's to refer to another report by the same medical expert. And of course that's not the same as the possibility that the claimant may need another report from a different medical specialization. If you've got an orthopedic report, you might need one by a neurologist. But the protocol does not refer to that as subsequent subsequent is reserved for a report from the same expert who's already reported. It's useful to have that in mind when reading the protocol because it's not always clear what the protocol is actually referring to. Certainly non medical reports are now something that the protocol envisages maybe part of the story. And again, the anticipation is that in most cases a report from a non medical expert won't be required but where it is required and it's reasonably required to value the claim. Again, it's permitted. Um Paragraph 7.2 applies to Non medical expert reports as it applies to expert medical reports. It's just worth saying um one thing that's worth mentioning about that could be all kinds of non medical reports that the claimant might obtain and you know it could be an employment consultant, potentially it could be a forensic accountant, potentially. Again one can't help feeling that those kind of reports are needed. We start to think this is not likely to be a claim that's going to I firstly be suitable for this process or be within the financial Parameters of this process. Um at this point I think it also draw your attention to Paris 7.8 in the protocol Which anticipates the possibility for some specialist legal advice. And it's interesting because this is one of those provisions that relates to cases with a value of more than £10,000. There are not many are provisions within the protocol. Either this one or the one actually that make a difference between cases of less than 10,000 and those over, but this is one of them. So if the value is likely to be more than £10,000, an additional advice from what's referred to as a specialist solicitor or from council may be justified. Where again the test is it's reasonably required to value the claim. Um And would you say about that that there's a fixed cost in respect of that advice of £150. But I would also add that if there's a dispute about the cost of that item um that any dispute about whether in an additional advice on Quantum um and whether that's justified or not. Um The procedure to use to try and justify that in cost terms is set out CPR rule 40 6 14 which provides if there's a dispute um you know, a dispute and a written agreement on all issues but failed to agree the amount of costs proceedings can be started, costs only proceedings can be started so the court can actually determine the amount of those costs. Um Clearly where the claimant obtains more than one expert report or an advice from a specialist solicitor or counsel, the defendant can refuse to pay those fees. And clearly again the test if you like, is for the claimant to explain in the stage to settlement pack why they obtained further report or why they obtained that advice and again for the defendants at stage to set out their reasons if they're suggesting they're not willing to pay for it. So it should be clear At stage two if there's going to be any dispute on the cost of those kind of items. It's also the point of the stage if you like stage two where rehabilitation and the claimants rehabilitation needs come to the fore and It's clear up 6.6 that the claimant needs to set out any details of rehabilitation in the CNF the claims notification form and of course um to co on considering at all stages the relevant rehabilitation code. Um I don't want to spend the whole chunk of this weapon are talking about the rehabilitation code, but it's a code that was agreed between the parties, isn't it? To ensure that insurers and claimants both address their mind to the claimants rehab needs and address their minds to the extent to which the insurer will be willing to fund any treatment. Um One of the things I would just point out though in the rehab code is it's very clear that the claimants under no obligation to undergo any intervention or medical treatment or investigations. Um Again, the insurers will only be expected to pay for treatment that's reasonable um in nature and in content and cost and, you know, certainly the insurers agree not to dispute the reasonableness of treatment with the claimant that they have in fact agreed to fund. Um It's also clear that the insurer, in the event of the claim failing or perhaps they're being contributory negligence or an issue about causation that the insurer cannot recover the funding that they've paid out unless of course they suggest that fraud or fundamental dishonesty is the reason for that. So it encourages effectively the code doesn't it. Um communication between the parties about the rehab needs of the claimant and you know, the completion and transmission of the claims notification form ought to sort of start that process unless of course there's a need for urgent treatment in which case the claimant may already have had that treatment at the point the CNF is sent um certainly paragraph four point three sub three of the rehab code, I just draw your attention to is that if the claimants decided not to take up a form of treatment that's readily available are in favor of perhaps a more expensive option, then the reasonableness of that decision will be considered at a later date. And I think that's where we go to our next point, which is that cases like nuttall and chew that came along a few years ago. Um from leeds County court flags up. I think the risks for claimants in terms of the way in which the code might be interpreted. Um It's an interesting case, it happens all the time, but this is one of the first ones I think to come along to the court on the issue by a letter to the claimant, solicitors included in the Stage two documents, the defendant's insurers offered rehabilitation provider and offered rehab, I think it was physio at a cost of £41 a session. They made it clear that pursuant to the rehab code, the 2000 and seven code, they were prepared to fund Sessions 41 lb but not prepared to pay out any more for more expensive rehabilitation. And they made reference interestingly to the credit higher case of Copley and lawn. The court of appeal case from some years ago, attempting if you like to use the same principle in respect to the physio, um the claimant chose to obtain a physio from her own physiotherapist paid. The short version of the story is more for that treatment than the defendants had offered to pay. And the issue really was whether or not the principles applied in the Copley and lawn Madam case, in respect of credit higher. If you don't deal with those cases or even if you do actually either side, you have heard of those cases, the deal really being if something equivalent is being offered at a cheaper price, is the fate of the claimant failing to mitigate their loss by taking that option of the cheaper deal if you like. Um The first issue to talk about that with that really is that of course, in the credit higher arena, the key question appears to be, is the same thing being offered but at a cheaper price and a comparison is made between what was offered and what the claimant then availed themselves of. And I don't see that that argument is any different in respect of um rehab, physiotherapy. It's no different. Consequently, we can compare the two proposals if you like, in terms of quality. Um the court took the view that the claimant was wrong to turn down the defendant's offer of the rehab. The physio at the fixed price and she was unable to recover the difference in price between that and the rehab, she did in fact avail herself off. I think in terms of trying to defeat these sort of arguments from a claimant point of view in the future. One way to consider things would be to look at what the differences in the treatment being offered. You know, obvious things come to mind like location, like whether or not the physio could be offered out of working hours. Like whether or not the physio was offered by a male or female operative. All those things might well come into consideration in terms of deciding how reasonable the claimant was to avail themselves of their own organized rehab treatment. So there's something to be alert to because since the case of course was reported, it's now become a very commonplace. Um, suggestion from defendants. Um, I want to talk a bit about losses and I want the first thing really to say is that we need to be alive to the fact that clearly for the vast majority of accident victims, NHS treatment is received in the aftermath of the accident. Um, clearly at the time of final assessment of an award, there is a considerable increase in the type of treatment. Um, and you know, possibly private medical treatment may well be sought. Private medical treatment may be intended to be taken up at a later point. Um, where treatments needed, we need to consider the issue, you know, how reasonable might it be for the claimant to avail themselves of that private treatment and seek the cost of that private treatment from the defendant, rather than using the NHS. Whilst we just talked about failure to mitigate loss, I think we need to bear in mind the provisions of section two, Sub four of the law reform personal injuries at 1948 is the slide on your screen and in that particular provision goes all the way back to when the NHS first came into being. It's very, very clear that it is not an argument that has any legitimate basis for a defendant to say, well, claimant, it would be more reasonable for you to have used NHS treatment and used those facilities rather than seeking out private treatment. That having said, it doesn't mean the cost of private treatment is always recoverable, but it will be recoverable if it's the genuine intention of the claimant once in possession of the damages. If we're talking about future cost to actually receive treatment privately rather than as an NHS patient. It's obvious and clear. While that provision in the act, and it is of course to avoid the public purse, if you like, picking up the cost of the defendant's negligence. So clearly not an argument to suggest the claimants been unreasonable in turning to private treatment. The claimants already had the treatment. One of the arguments we might run would be the quality perhaps of the treatment, the claimant has undergone the speed with which they were able to access it. For example, in the future the same issues may well apply. Again from a defendant point of view, it's just not open to the defendants to argue that failing to take up the offer if you like. I would say in parenthesis of so called free NHS treatment because of course we know that's very far from true. It certainly isn't free. It's just that we're all paying for it. So make sure when you're putting your losses together that were cognizant of that fact and we talked to the claimant properly about what their intentions might be about future treatment. Of course, we need at this point to put together a loss of earnings claim and loss of earnings claims need to be justified clearly by the medical evidence. So we need to be very certain very sure that our period of time off work for the claimant is supported in the medical evidence and justified in the medical evidence. We need to be clear that the time the claimant took away from work is accurately reflected in the earnings documentation, which we would receive. And clearly, depending on the earning pattern of the claimant, we'd be looking for pre accident, averages of earnings Perhaps 13 weeks prior to the accident. If that makes sense, in the particular claimant situation and, you know, the dates of period of absence from work. And again, we would want to make sure that the employer sickness records confirm those dates that the claimant has given us. You know, we all know sadly how from time to time it happens that those dates don't match up with the dates that we have from the claimant. We need to be clear that those figures make sense and are the same figures. Um We need to know of course what the claimant actually earned during the period of absence. So what money was actually paid um ensure that everything supports the dates and sums in the claimant schedule of loss. We know that, you know, the defendants will be looking for any discrepancies. Um that suggests that those dates are not the same dates the claimant was away. Um you can of course obtain a full set of national insurance and tax figures, including an archive of past years on the Inland Revenue website. And there's also guidance in the facts and figures handbook that we usually have access to. So check out the sturdiness of that loss of earnings claim and the legitimacy of that loss of earnings claim. Clearly, you may be in a situation if the claimants earnings fluctuate or perhaps if there are seasonal variations or over time periods of heavy use where you may be in a position of asking the defendant for comparative earnings details, someone in a similar role to the claimant during the period of the claimants absence and again, any data protection issues can be resolved by simply identifying those comparatives as compared to a compared to be rather than using names. So it might be that we need an alternative method to analyze the losses we know within the process that witness statements are unlikely to be used regularly, but the protocol does go on to anticipate that one or more statements may be provided where and again the phrase comes up reasonably required to value the claim. Um If there's a care claim, it might be that we consider that it's appropriate for this evidence to be included in a witness statement. Um you know, generally we need to be very, very clear that our stage to settlement pack as we're putting it together, we'll talk about that in a moment is going to include all the evidence relies on in support of their claim. We know there may be difficulties and we'll talk about some of those difficulties in this webinar, but some in our stage three webinar for claimants to try and introduce documentary evidence, witness statement evidence later once stage two has ended. Um and it may be that it's not possible for the claimant to rely on any fresh evidence at that point, um possibly um a short witness statement from the claimant perhaps explaining why a longer period of work than would appear to be justified was needed. And again, that can be dealt with in a witness statement pretty effectively one of the circumstances that comes up next at stage two is the prospect, the possibility that the claimant may need to obtain a subsequent medical report or a report from a non medical expert which we talked about a little bit earlier and At 7.11 in the process, we see that the introduction of the concept of an interim settlement is raised and the wording is quite interesting actually. Where the claimant needs to obtain a subsequent medical report or a report from a non medical expert, the party should agree to stay the process for a suitable period. The claimant may then request an interim payment um and References made to paragraph 7 12 7 20. What's interesting about that, I think is the idea that there needs to be any kind of stay because of course at this point, um there is no time period once the settlement pack is actually sent to the defendant, of course the clock starts ticking again, but at this point no clock is ticking. There is at the moment anyway, no obligation on the claimant to get their settlement pack out in any specific time frame. So it's a curious phrase to suggest that a stay in the process is required and indeed we've had a couple of cases recently that have looked at what that might mean. Um Certainly we know that the next step in this process if the claimant does consider that's appropriate, is that the claimant might request an interim payment and we know we'll talk about it in a moment that the climate gets the opportunity um to think about an interim payment of £1,000 or the possibility of an interim payment for a greater sum than a £1000. And it's made very clear um what those two payments might be four. We'll talk about that in just a moment. So it's possible the Climate might do That. And if that's something the claimant intends to do at 7:13, we know we see that the protocol suggests that the claimant must send to the defendant and interim settlement pack an interim an initial medical report, including any recommendation that a subsequent medical report is justified in order to request the interim payment. Remember we said that subsequent medical reports mean a further report by the same person. I think we have to assume there that we would also include, for example, if our first expert considered a different type of expert was needed. That recommendation also in that experts report, um clearly at this .714 goes on to require that the climate must send evidence of pecuniary losses and disbursements and that will help the defendant considering whether to make an offer to settle at this stage. Um It goes on to talk a little bit about interims of More than £1,000. And if that's the case, the claimant needs to specify in that pack the amount requested and the heads of damage which are subject of the request and why it's wanted um 7.16 makes this much clear unless the parties agree otherwise. The interim Payment of £1,000 is only in relation to general damages and where it's more than £1000 The amount in excess of 1000 is only in relation to pecuniary losses. Interesting. Again, the wording is important. The wording is important because it's important to note that the refrain, if you like is unless the parties agree otherwise. So it's entirely possible you can agree with your opponent that those sums are for different amounts, but the default setting is general damages for the £1000. And of course, we know that all cases at this stage in the process are assumed to be worth more than £1000 pain suffering and loss of amenity. but if you're looking for more than 1000, that additional amount is in relation to pecuniary losses. And if we pick up a tab from the RT A protocol, remember we know that in that protocol, it's pointed out very clearly that if those pecuniary losses relate to vehicle related losses, it's only possible where the climate is actually paid for those losses themselves. So we can see that it sums that have already been incurred that are being discussed here. Let's take the first possibility that the claimant is going to want an interim payment for a £1000. And we see that the claimants going to send the initial medical report and the interim settlement pack to the insurer. The interim settlement pack appears in appendix five in the bundle from the claims portal. This provides the insurer with the information necessary to make an interim payment of a £1,000 and the defendant's insurer will have 10 business days from um the receipt of the interim settlement pack to make that payment. Um Now what's interesting I think about that is that the defendant then the idea will have everything before they have to make their decision as to whether they're willing to make that interim Payment of £1,000. I think I mentioned that there's been a bit of case law in relation to the requirement if you like at Paragraph 7 11 for the claimant to request a stay before proceeding with their request for an Interim of £1,000. It comes from a case called Gimenez and the issue of services um in the Supreme Court costs Office from just a few months ago. Actually, it's an unreported case but the judgment is interesting in that the claimant, the question for the case was whether the claimant acted unreasonably in exiting the portal um exiting the portal on the basis that the defendant did not pay an interim payment of 1000 pounds as requested. Um The court took this view in order to justify a request for an interim payment in accordance with paragraphs. And we've already talked about what those paragraphs are. The claimant must send an initial medical report to the defendant. The judge in that case, taking the view that initial medical report implied that a further one was awaited and needed. And the judge saying that that strongly implied the circumstances in which such requests are to be made are limited to those where a further medical report is required. Um In this particular case, the claimant was requesting a further an interim payment on the basis that he wanted to obtain a report. Think from a psychologist or psychiatrist and you know, the funding for that report, he didn't have and he wanted his £1000 in order to be able to pay for it. Um I think that we can see from the Gemini's case that the court took the view that the claimant was unreasonable uh In exiting the portal for the failure to pay that interim payment within the requisite 10 business days. Um And you know, the price if you like. The claimant pays for that unreasonableness is the costs price. Consequently, it's not a reported decision. It's not a decision in a higher court, but it's clear that the court took the view in that case that in order to justify a request for an interim payment, um claimants are going to need to request formally a stay of the process and that that request if you like, hangs on the need to obtain further medical evidence. Um You know, I think the judge in the case looked closely at the protocol and took the view that the drafters of the protocol wanted to restrict claimants ability to seek interim payments to certain defined circumstances, i. E. Those set out in paragraph seven point 12 um I either need to obtain further medical evidence and you know, went on to say that it may cause difficulties claimants in certain circumstances. That that's the case and otherwise requesting an interim for any reason to any claimant is something not permitted by the process. I just wanted to make that point, as I say, I'm not suggesting that that decision is an authority, but I think that it is an alternative reading of the provision that we ought to be conscious of and wary of um the possibility that an interim payment of more than a £1,000 might be required um is Clear at seven 14 the defendant clearly must pay. Mhm Yeah, yeah, mm hmm. Let's take a look at the situation where the interim payment of More than a 1000 pounds is required. The claimants lister will send the initial medical report and the interim settlement pack to the insurer and this is going to provide. This is what the portal anticipates the insurer with the information necessary to make an interim payment Of £1,000. Consequently, The defendant's insurer is going to have 10 business days from the receipt of the interim settlement pack to make that payment. We talked, Let's take a look at an interim payment of more than £1,000. So we know that we have two options here. We have the possibility of an interim payment of a £1000. We have the possibility of an interim payment in respect of more than £1000 and you know what we have to be live alive too I think is that it's More than a 1000 pounds. We're looking at pecuniary losses that the claimant may have run up. So we need to be looking at things that the claimants already lost, possibly earnings, possibly other items that the claimant might have had damaged in the accident. Um Clearly we can see That according to seven 0.14 where the claimants requested that interim payment of more than £1000. The defendant has some options here. They can either pay the full amount requested less. Any deductible amount payable to the C. R. U. They can pay the amount of a £1,000 or some other amount Of more than £1,000 but less than the amount requested by the claimant. And in That particular circumstance they get the opportunity of doing that within 15 days of receiving the interim settlement packs, they get a bit longer to think about that greater sum. Um Clearly we Can see that if it's more than £1,000. The defendants options are a little more a little less limited. So the claim, the defendant has options to consider how much to pay, but we now have to think about what the claimant is going to be able to do about that if the amount they are looking for doesn't come. So where the defendant does comply with paragraph 17 19, sub two or sub three. In other words, the defendants made a payment, but it's not the payment over 1000 that the claimant was looking for and the claimants not content with that amount. The claimant can start proceedings, but this is where we have to be very careful. The court will order the defendant to pay no more than the stage to fixed costs. Where the court awards an interim payment of no more than the amount offered by the defendant or the court makes no award. So that's going to be allied and tied tightly if you like to the Claimants intention to go ahead and make an interim payment application in the part seven world if you like. So if you're not happy with your interim, um we Know that the claimant is able to go off and start proceedings under part seven and indeed, no interim payments made paragraph seven to eight of the process says where the defendant doesn't comply with those paragraphs 7 18 or 19 i. E. £1000 or more than 1000 pounds. The claimant may start proceedings under Part seven of the civil procedurals and apply to the court for an interim payment in those proceedings. Now, I think what's interesting about that that If we want to leave the processes acclaim and as a result of that failure to pay an interim whichever one it is 1000 or greater than 1000. We need to give notice to the defendant and it's not the only exit where notice is required. But if I draw your attention to paragraph seven point 30 we Get the clear indicator where these paragraphs 7- 8 79 apply. The claimant must give notice to the defendant that the claim will no longer continue. Under this protocol unless the claimants notices sent to the defendant within 10 days after expiry of the period, Whether it be 10 or 15 days the claim will continue under this protocol. Now, whilst the claimants given a clear option for what to do on exiting if you like. I. E. Start part seven proceedings, it is clear that it's not compulsory for the claimant to leave. So this is a choice for the claimant. And I think what's beginning to become clear is that when the courts considering how reasonable the claimant is to elect if you like to leave for a failure on the defendant's part I failure to pay an interim payment, We're going to see the court from a string of decisions actually that we've had in the last 18 months I guess potentially apply the overriding objective. Now it shouldn't sound like a big surprise save that the protocol was meant to be a prescribed a code of conduct if you like. Apart from the civil procedurals. But one of the things to be conscious of don't forget if we're arguing about the reasonableness of an exit, particularly let's say in relation to an interim payment we need to consider the precepts of the overriding objective and we need to consider the amount in dispute potentially before removing the claim from the portal. Again, string of decisions there was a string of decisions in the West Cumbria County court. Again I'm not suggesting these are firm authorities but they are an indicator of the way in which judges are thinking on these matters of highlighted I think cases the lead case was bromley and glazed up um have highlighted the dangers of rejecting a lower some offered by the defendant as an interim payment. Um You know the difficulty is that where small sums are involved and I think in the lead case it was the difference of about £150. Um And the claimant removed the claim from the M. O. J. Process because the interim payment was not as the request the court decided that that exit was unreasonable and that the overriding objective should have led the claimant to consider the expense of removing the claim. The additional expense that would have been gone to and the fact if you like that that wasn't a reasonable decision for the claimant to have made, we should have some clues certainly where the defendant Has failed to make an interim payment of more than £1,000 in the amount the claimant has requested. Um We should have some clues as to um an explanation as to why the full amount requested by the claimant is not agreed. Um Consequently we should get a clue as to the defendant's reasoning for failing or failing to agree to pay the sum that the claimant is seeking and that might help us to try and decide whether or not the decision that we've made to leave the process is likely to be considered a reasonable one. But I think what we can see in recent case law is that the trend is moving towards. Despite the possibilities in the process that suggest an exit is a real possibility for a claimant and an option. What we begin to see is that the court will still be looking to the reasonableness of that exit rather than the automatic prescription of an exit if you like. Just one more word on interims. And we should also be conscious that where the claim is valued at more than £10,000. The claimant can use that procedure for interims at 7 13 to 7 20 to request more than one interim payment. So consequently um it's possible in bigger claims over £10,000. You might seek to use that interim payment request more often. Again, I think we need to be conscious and wary that every time we seek to use that process, however, that we're going to meet the requirement i. E. That we can show that we've got additional medical reports coming or that there's a reason for the delay if you like. The need for a stay in the proceedings. We need to be really conscious of that at whatever stage of the process we're requesting the interim. If we're talking stage two, I wanted to just take off really um what what needs to be in our stage to settlement pack. So there needs to be the form, there needs to be a medical report or reports upon which you're relying. There needs to be evidence of pecuniary losses, evidence of disbursements, any non medical expert reports, we've decided to go down that road, any medical records, photographs that were served with the medical reports and any witness statements upon which we're relying. And there's a time frame now, you know, once this settlement pack is sent to the defendant, um we know that that settlement pack should be sent to the defendant and it's a Curious way of phrasing it, but within 15 days of the claimant approving the final medical report and agreeing to rely on that prognosis or any non medical expert report, whichever is later. A curious provision because I think it's very, very difficult for the defendant have any sense of when that time frame might be. How can the defendant know when the claimant has agreed to rely on those documents. What is important I think to say is that there isn't a time frame as such um for the claimant to send off their stage to settlement pack, which is why the use of the word to stay in respective interims is so unusual because the claimant at this point is not subject if you like to a ticking clock in terms of obtaining um getting the stage to settlement packed together, there is no time frame for that. Um What we need to be aware of is that at paragraph 6 16 and this applies except where the claimant is a child, so this is not applicable where your claimant is a child um and it's not going to be something that be applicable, but where liability is admitted, The defendant must pay the stage one fixed costs set out in rule 45 18 And they need to do that within 10 days after receiving the stage to settlement pack. Now it's quite clear um that it's a must this provision and clearly the defendant then is obliged to make that payment that then begs the question. Of course, doesn't it? What happens if the defendant doesn't make that payment and we need to be clear about this Within the provisions 6 17 is the relevant paragraph Failure to pay the stage one costs very clear. and I think we talked already about circumstances in which the claimant needs to give notice to the defendant that they are intending to leave because of failure by some obligation or to make some obligation on the defendant's part. We talked about it with interims. I just want to pick up the wording on this where the defendant fails to pay the stage one fixed costs within the period specified. The claimant may give written notice that the claim will no longer continue under this protocol Unless the claimants notices sent to the defendant within 10 days after the expiry of the period in Paragraph 6 18, the claim will continue under this protocol. So effectively that's within 10 days that period or after receiving the stage to settlement pack. It's a notice Period, it isn't a period that the defendant gets a sort of extra 10 days to pay. It is just giving the defendant notice that those stage one costs have not been paid. I think this is where this is one of those provisions where we can get very confused about the circumstances in which the protocol is clear that we can leave and the circumstances in which the protocol is going to be subject to the test of the reasonableness of our exit. Now, you know, certainly it may be the case that the defendant will pay those costs on the next day after the requisite period or even just two days later or even perhaps approaches and suggest or ask for additional time to pay. Now, in relation to that second comment, we cannot and the process does not allow extra time if you like to be given um from the published times that the defendant has to respond. So that's sort of not within our gift. And clearly it is pretty straight forward that it's an entitlement that the claimant has in terms of leaving the process. As a result, the defendant's failure to pay those stage one costs and you know, it's a common or it certainly was the beginning, a very common reason for claims to exit the process. I think it's less common now because most defendants have or are aware of the need to pay those stage one costs in a timely manner and that if they don't, the process may well come to an end. As a result, the climate giving notice, I would argue that this is one of those provisions that is not subject to a reasonableness test and it is simply a prescribed time limit if the defendant fails to comply with um the solution is that the claim no longer continues under the protocol. Consequently, um the claimant is in a position to seek greater sum in respect of costs. Um I think we need to pick up what can happen in this period in this so called initial consideration period. Clearly at 7.36, this is an important time for the claim and it's an important time for the claim because it's at this point if you like, that the defendant gets to make a decision as to what they're going to do in terms of um the offer made by the claimant. So it's in that period that period where the defendants received the stage to settlement pack, they've received all the evidence, the medical evidence and the documentation and they now need to respond to the claimants offer. And it's in this if you like this window of opportunity, a note actually that we get a reminder that it's this period of time that an extension can be agreed to. So the parties can agree to extend this period of time by a mutual agreement, but it's here that the defendant gets to make too points if you like, um that they may decide are appropriate. Firstly, it's here that they get to say if proceedings were started, the small claims track will be the normal track for that claim or they get at this point now they've seen the medical evidence to withdraw their admission of causation as defined in paragraph 1.1, someone sub b which we discussed at the stage one, um webinar. So for the defendant an important moment if on viewing the medical evidence, they take the view that this is a claim that more properly would be allocated to the small claims track. It's now they must say so and if they do, the claim simply leaves, this is not a claimant led exit, this would simply be something that would happen automatically on the defendant making either of those points and we know from the admission of causation that if the defendant is suggesting that the injuries the claimant sustained were not caused in the accident, that effectively brings the process to an end. So we need to be clear if we think either of those two things have happened, we need to be very, very clear with the defendant and ask if we're not clear what it is that defendant is saying because it may mean that the process simply comes to an end. Um we know that once the settlement park has been sent, that the next stage once offers have been made and we'll talk about that in a moment. The next stage is that the matter Then proceeds to the claimant starting stage three effectively by sending the court proceedings pack and the court proceedings pack is really just a repeat if you like, of the parties offers that have been made in response to the claim, its original offer in the settlement pack. Now obligatory is one off reach. There should be an offer in the settlement pack from the claimant and a response offer from the defendant and we know that all cards need to be on the table at this point and that everything should be contained, that's going to be contained in that um Stage two Settlement Pack Form and indeed if we Scoot ahead to stage three and look at the practice direction eight b. um that governs the stage three process, we see that paragraph 9.1 in the practice direction. The practice direction is clear that where the defendant opposes the claim because the claimants not followed the procedure set out in the protocol or filed and served additional or new evidence with the claim form not provided under the protocol. The court will dismiss the claim and the claimant may start proceedings under part seven. So it Becomes really really clear that all cards need to be on the table at stage two. We saw it in cases like Mulholland and Hughes where a defendant didn't raise a particular issue. In fact this was the process but the point is identical. Um the defendant didn't raise the issue of need in a credit higher claim at stage two and could they raise it at stage three at the park eight hearing um clearly said the call, it's the intention of the protocol that if the defendant wish to raise an issue in this case, it was higher because it was in the process. Exactly the same principle applies to the LPL, it should be done at stage two and that to make an offer in respect of higher charges which the defendant did do a Stage two was not to admit the need for higher But not to challenge the need at stage two was equivalent to saying the claimant did not need to formally prove it. That's really important because it basically means that the time for the defendant to make their arguments is at stage two and it just simply isn't an opportunity for them to make those arguments later. At stage three, it's too late, the evidence won't be allowed to be included. It's interesting, I think because it makes it clear that the practice direction maybe is not only an injunction if you like, for the claimant not to introduce fresh evidence that stage three, but also for the defendant. And I think what we can be clear about is that we have a clear sort of steer in a case called the honest and Clennell that came along a little a little while afterwards that in fact that no new evidence requirement, which we've just talked about in Mulholland um is also the case, even if the defendant seeks to introduce that new evidence um in their acknowledgement of service. Again, equally unacceptable, not permitted if you like. Um Certainly in terms of the stage two process, we know That subject to paragraph 7.73 and 7.74, the defendant needs to pay the amounts in other words the amount of their final offer within 15 days of receiving the court proceedings pack and if the defendant doesn't comply with those paragraphs, the claimant may give written notice that the claim are no longer continue under this protocol and stop proceedings under part seven of the civil procedurals. Again, we need to be aware and conscious that it's something the defendant is required to do. And again, it's quite clear it's a written notice situation. The claimant can leave And the claim is given a clear indicator that proceedings can be started under part seven. We need to be wary of this because Cases like Smith knowing back in 2016 make it clear that despite the requirement at 7 70 that the defendant must pay to the claimant except in child cases, the final offer of damages less any deductible benefits, less any interims, Any unpaid stage one fixed cost stage to fixed costs and disbursements. Despite all of that, If the amount that is awry, if the difference if you like that is a rye is a very small amount. As indeed it was in the case of Smith and in fact the amount that was not paid was the princely sum of £2.50 in respect of a developed the court in that case took the view that the claimants exit for failure to pay, that exact amount was not reasonable and made the point that it wasn't mandatory for the claimant to leave on that reason alone and that in those circumstances it was up to the court to take a view about the reasonableness of that exit from the protocol and the court indeed did take a view about the reasonable of it and took the view that it was not reasonable. Um Certainly we talked about the 35 day total consideration period at the beginning of this webinar and we know that that period can be extended by the parties um agreeing to extend either that Initial consideration period. And remember we talked about that as being the 15 days for the defendant to consider the stage to settlement pack and make an offer in response to the claimants or the negotiation period. And again, that remainder, if you like. Of that period that 20 days is referred to in the protocol as the negotiation period, interesting term because it just requires just identifies a period where there might be any further negotiation between the parties. It doesn't require that there should be any interestingly or both. Um one of the things that's worth mentioning, I think is that it's important to note that extending this period is something clearly the parties can agree to do between them. But shortening, it appears to be something that neither of the parties has in their gift and indeed shortening that period before the matter is possible to move on to Stage three might leave the claimant in a position where the defendant would suggest that they failed to comply with the precepts of the protocol. Um certainly implored in terms of the tactics offer tactics tactically, the claimant can obviously make a counter offer on the last day if you like. Of the total consideration period. I I guess day 34 unless there's an extension been agreed and that will give the defendant a minimum time to consider the offer and proceed to stage three. And the reason that works that way is I will draw your attention to paragraph 7.34 where a party makes an offer five days or less before the end of the total consideration period. There will be a further period of five days after the end of that total consideration period for the relevant party to consider the offer and during that period, no further office can be made by either party. So important to consider your tactics at that point. If settlement is reached, the claimant must receive their damages, costs and disbursements. Within 10 days of that settlement being agreed again, there is no sanction for failure to pay that settlement money within that period, despite the word must, there is no sanction listed. What about late settlement? What about where the parties agree a settlement for a greater sum then the defendant had offered during the total consideration period, all the further consideration period. But after the court proceedings pack has been sent to the defendant But before proceedings are issued under stage three in that gap, if you like that problem for receiving a late settlement has been resolved and it's been resolved because we now have reference to paragraph seven 44, the fact that the defendant needs to pay fixed late settlement costs set out in Rule 45.23 A That means the defendant has to pay at least the paper hearing costs, i. E. £250 if they decide to make that late offer once the court proceedings pack has been sent. But before the claim form is issued and it's entirely possible that that might happen. Remember the sort of tick box For the earning of those. Stage three costs is actually the issue of the claim form are not the serving of the court proceedings pack. One of the things we have to consider and at 7.59 there is a general exit possibility is that the claim might be unsuitable for the protocol. For example, it said because of complex issues of law or fact, um maybe, you know, the possibility would be that the claimants applying for a group litigation order, in which case it would become more complex and the claim will no longer continue under the protocol. So, it needs to be something that would make it complex and unsuitable for a Determination by stage three hearing. It doesn't require that cases break new ground or establish some new legal principle or that they require a three day time estimate for it to fall without the quick and cheap protocol process, but unsuitability might mean lots of things actually um effectively Um, let's take a look at the sorts of things that might make this unsuitable for the process. One of them might be that the insurer has decided, you know that it's needs a part 18 request. Now there is no provision for part 18 requests within protocol. If the defendants seeking that kind of information via apart 18 request, it may be the answer that suggests a level of complexity that the portal is just not going to be able to respond to. Remember that witness statements are not compulsory. So it may be that the claimant might respond to apartheid team request but they're still be no oral evidence given at the stage three hearing. Its you know, complexity is not an absolute term. So it's a relative term. Some cases a more complex than others. And we need to read that in the in the sense that it might be sufficiently complex to make it unsuitable for a resolution within the protocol and buy a stage three hearing. It doesn't mean that we have to show anything major in the case that we're dealing with. If you've got defendants who want disclosure of the claimants bank statements or want a full request of the claimants, full set of medical records. All of those matters are matters that the protocol does not deal with and might be argued to be situations where they would justify a case being removed from the protocol. So consequently, I think it's important to know that we consider the possibility that unsuitability for the protocol is something that might mean our case can be removed. All sorts of situations have created been created in the past where that's been the case. We've had situations in the R. T. A. Process where defendants repeatedly contacted the claimant directly offering the claimant um money settlement monies direct, um and despite requests from the claimant's listers from for them to cease doing so, and that was considered a matter that made the the case unsuitable for determination in the protocol. So we need to think quite carefully about that general exit, if you like, possibility. Um I think the theme that probably emerges from stage two is that we need to be very, very wary of all the exit opportunities and be conscious and be aware that we may be judged on the reasonableness of our exit. Um despite what the protocol might say, the overriding objective is something to keep in mind at all times, particularly when considering exiting the protocol that brings us to the end of our webinar. Thank you very much for watching. I hope it's been useful and hope to see you at the Stage three webinar. Thank you
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