An updated session about RTA claims procedure surrounding the RTA SCT Portal.
Hello and welcome to this webinar on the new R. Ta claims procedure. My name is Nikki carter and I'm presenting this webinar on behalf of data law. Um There's so much that we could say and we will say about the new, I've called it the small claims track R. T. A. Protocol. It's got a much longer trickier name which we'll we'll come to in a short while. Um you know nothing about this is straightforward unfortunately despite the fact that it's intended for use by litigants in person. But we'll talk about it its full name and we'll talk about a number of matters actually. What we know of course is that we've now had haven't we? The Civil procedure amendment number two rules this Year and 129th. We're now on update of the civil procedure rules with Practice direction amendments to go with it. Um The details if you like of the new um S. C. T. R. T. A. Protocol um which will also sit alongside the whiplash tariff. Um Arnett were announced at the end of february In 2021. Um as everyone knows all rather a rush they will come into force did come into force. We were told they were coming into force on the 31st of may and indeed they have um with the accompanying changes to the civil procedurals and these amendments will introduce changes to the civil procedure rules to the small claims track in road traffic act cases. Um Well if you like compliment if that's the word the whiplash reforms. So that's the idea. And in particular we've got a new Practice Direction Practice Direction 27 B. Which is headed up claims under the Pre action Protocol for personal injury claims below the small claims limit in road traffic accidents, court procedure. Um That's why I've given it a shorter title of our t a small claims track protocol. Um It all kicks off kicked off on the 31st of May. Um So accidents from that date and the small claims track limit for personal injuries arising from an R. T. A. Has been increased from 1000 to £5000 but with a few exceptions. So we need to talk about that. So we're going to talk about the new protocol. We're going to talk about what's included in that new protocol. We'll talk about the exceptions because we need to talk about what's not included and what won't fall within this new ambit. And also want to say a little bit about when the protocol will cease to apply because a little bit like the existing R. T. A. Protocol that we all deal with. We have situations where the protocol will no longer apply, various things will happen and the protocol ceases to apply. So we need to talk a bit about those. We also need to talk about value and values and we need to talk a bit about what will fall in on what will fall out of the new process. Um We need to say a bit about R. T. A. And the whiplash tariff that we've heard so much about. Um And we'll take a look at the nuts and bolts of the whiplash tariff and and quite what we think might happen about the way in which that tariff will be used and the possible exceptions to it. We'll also talk a bit about time limits and about admissions within the new process. So this is one of those situations I think you know everything you knew about the R. T. A. Portal. The existing portal. Not quite forget it but we need to think again because this one does not work in the same way um at all to the existing process. Okay well what we do know is that with few exceptions As we said, the small claims track limit for P. I. Arising from an R. T. A. Has effectively been increased hasn't it From £1,000 to £5,000. And there are a few exceptions. So The new protocol is going to apply where the claimant values the overall claim at not more than £10,000. Remember that's the existing track limit for the small claims track and the claim for damages for injury at no more than £5,000. So we'll say more about that in a short while. But what's important of course about that Is if the total value of the damages exceeds £10,000, this protocol will not apply. So we'll say a bit more about that in a moment. I want to explain a little bit more about what that actually means. Um the value of any non protocol vehicle costs is excluded for the purposes of valuing the claim. So a little bit like the existing R. T. A. Process we're ignoring if you like um what's called non protocol um vehicle cost. So things like credit higher will not be included for the purposes of valuing the claim. So non protocol vehicle costs is explained if that's the word we're going to use for litigants in person within the new protocol as vehicle costs which are not protocol vehicle costs. So first of all, we're defining it by what it's not and would be payable by the claimant to one or more third party organizations or businesses out of any damages recovered. In other words credit higher. So credit higher is not included in the total. Um Again, you know, quite how um litigants in person are going to negotiate their way around the meaning of that. Those couple of paragraphs is yet we're yet to find out, but it's it's far from clear. Um for litigants in person, for sure, um subjugated claims of course, where the insurers paid out and credit higher claims are likely to fall into the non protocol vehicle costs category. And again, quite how um litigants in person are to work out what that means and what that will mean for them, it is a whole other story. But you know, I think for the moment we have we have to just focus on what we know the protocol is doing and what we know it will mean for those litigants in person who are using it and for us, because, you know, which claims would more properly be included in the small claims protocol. Which ones will we still be dealing with in the R. T. A. Protocol? So The new portal um the new protocol will apply to our to us that happen on or after 31 May 2021, so that much at least is clear. We're not in confusion about uh you know, dates of getting CNF submitted or any other inset day, it is the date of the accident On or after 31 May 2021, where whiplash And other injuries are valid, up to the £5,000 are claimed and where the total value of protocol damages excluding credit higher doesn't exceed £10,000. So, you know, unless one of the exceptions applies a claim for a whiplash and minor psychological injuries, let's say. Or any injuries valued Under £5,000 should be started in this protocol, even if the claim eventually falls out, which it might do. For example if fundamental dishonesty for example is alleged. Um There will be eligible cases which fall outside the ambit of this new claims portal and we'll talk a bit about those in just a moment but claims being taken out of the portal where either the claimant or the compensate er believes that the value of the claim exceeds the small claims track limit. Remember It's the £10,000 or were the claim involved? Complex matters of fact or law. Now those two things we can strike a chord with us if we're dealing with the existing R. T. A. Protocol because indeed both those things in the existing portal um the R. T. A. Portal will be enough for the claim to leave. We we know that we know that complex matters of fact or law is a sufficient reason for a claim to leave the existing process. And we also know that either party, in fact strictly speaking in the R. T. A. Protocol um The compensate er if you like. Um if the compensate er takes the view that the claim doesn't exceeds the small claims track limit and it's going to fall within small claims then that very belief if you like once communicated to the claimant is enough for the claim to leave the existing portal. So claims will also as we said leave where there are allegations of fraud or fundamental fundamental sorry dishonesty made by the compensate. Er So where causation of injury for example is an issue claims will stay in this portal in order for the claimant to obtain a medical report and request an offer after which point the compensate er Has a period of 20 days in which to dispute causation. Once again we can see just how complex and difficult that's going to be for litigants in person to work out um and find their way around. You know just the very thought really I think of explain to a litigant in person that there is some dispute about causation and what that actually might mean is going to be extremely difficult I think for people to understand and not surprisingly really. Um Okay so the new small claims track portal protocol will not apply and these are the exceptions if you like. Um where the defendant is not a road user and remember this. This is the same exclusion that we have in the existing protocol isn't it? Um Only claims where the defendant is a road user will proceed through the existing R. T. A. Protocol. Now, you know, the obvious sort of category of cases where this has been relevant are things like claims against the Highway Authority where, for example, I don't know maybe there's a pothole in the road. And you know, the issue is the claim is being brought against the highway Authority and we've certainly had recent case law where you know, the question was should this claim has been started in the R. T. A. Protocol? The Existing one and the answer is no because the defendant is not a road user so that one is shared with the existing process. So the new protocol will not apply where the defendant is not a road user. So this will not include pothole, I don't know icy roads, it could be, couldn't it cases defects in the carriageway. The new small claims track protocol will not apply secondly, where there's a breach of the health and safety at work etcetera act well okay etcetera is interesting because of course, um since the, you know, the onset, if you like, of the R. T. A. Process, we know that there had to be a provision contained in both the L. P. L. Protocol and the aR existing RT A protocol to try to ensure if you like that any cases that involve breach of any of the regulations passed under the health and safety at work, The so called six pack rigs, if you like to ensure that those cases um didn't find themselves in the R. T. A. Protocol. So in other words, if you've got, I don't know, underinflated tires and perhaps the complaint is against the driver's employer in relation to those under inflated tires. That would be a case, whatever the accident there from it, that would mean that you'd be arguing about breaches of some of the regs passed under the Health and safety at work act. So again, those cases would not find their way into the new SCT protocol. Untrained drivers, claims brought against the M. I. B. Again, exactly the same as the existing R. T. A. Process. Those claims don't proceed through the protocol either. Um where the claimant is a child or a protected party. Now we need to be careful about this one because for claims for those types of claims, claimant, child or protected party, the £1000 small claims track limit um is not going to apply so except where there are whiplash injuries. So where the fast track, for example, is used after an R. T. A low value protocol case. Um and I'd refer you on this front to the Civil procedural 26.6 B Children and protected parties. The fast track will be the normal track where the claim is for personal injuries arising from an art to which occurs on or after 31 May and is made by a child or a protective party or a person who on the date the claim was first presented via the pre action protocol for low value person injury games was a child and consists of or includes a claim for whiplash injuries. Where this rule applies, the claim must not be allocated to the small claims track. So the issue here is that Children protected parties are not subject to that if you like, increase in the small claims track limit. It's something that was I think leaked if that's the word when the provisions were being discussed that Children and protected parties were not subject if you like to that new small claims track limit. So for others from 31 May we know 2021 there are tariffs on the amount of pain suffering and loss of amenity payable in whiplash claims and solicitors. M barristers will be under a duty not to settle such claims without appropriate evidence. And so you know effectively um what's being said here is we need to make sure that we're going to be seeing um medical reports before claims are actually settled by compensate Ear's um something that you know some of us have noticed was sadly missing from the original R. T. A. Process that is now included here and it's included in the rules if you like to to back that up remember the meaning of protected party within the rules is someone who lacks capacity Under the Mental Capacity Act 2005. So that definition if you like. Um, we need to be clear about. Um, again, you know, it may be that you need an expert to help you identify whether somebody does like capacity. Um, it's possible that it could be someone who is suffering from dementia or learning difficulties From 31 May. There'll be tariffs on the amount of pain suffering and loss of immunity payable in whiplash claims and solicitors and barristers are going to be under a duty not to settle such claims without, if you like appropriate evidence in the, you know, in a form to be determined but appropriate evidence suggests of course that medical evidence is what's going to be required. And so we see at last if you like some kind of protection in terms of, you know, the ability if you like for defendants to um try to settle claims in the absence of appropriate evidence, i medical evidence, something that is sadly lacking from the existing R. T. A. Process. Let's take a look at the further exceptions that we've got um, to the use of the small claims track protocol. And what we also see is exceptions for claimants who are vulnerable road users. So for example, motorcyclists, pilyeon, sidecar passengers, cyclists, pedestrians, horse riders and those using mobility scooters. So those so called vulnerable road users. And indeed, that's the term, isn't it used in the highway code. Um, for those categories of road user, they'll all be excluded from the ambit of this new process. They won't be included in the changes in relation to small claims track limit, nor will they have to use this new portal. Again, similar to the existing R. T. A. Portal where the claimant is a bankrupt. Um, Those cases will not follow this particular protocol. Again, those of you use the R. T. A. Process won't be surprised by that because that's exactly the same isn't it, in the existing R. T. A. Process. Um And once again claimants and defendants who act as personal representative of deceased persons. Um Again those claims will not start in the small claims track new R. T. A. Process. And again that's that's shared with the existing R. T. A. Process. Um And then lastly situations where the defendant's vehicle at the time of the accident was registered outside the UK. And once again um those types of claims are excluded from the existing R. T. A. Process. So no real surprises there. But I think a bit like we've had to get used to with the existing R. T. A. Process. It's important to kind of hold on if you like, to the situations, the exceptions to the process. The cases that won't be captured because that's really really important. And I think if we're giving advice to anyone who phones us up and asks, you know whether or not we can handle the case. We need to be aware of the situations where we can still go ahead. Use the existing R. T. A. Process or perhaps where we're advising somebody that actually we can't do that either. So we can give clear information about which cases will be captured and which won't effectively as well as exceptions. We need to talk about situations where the new protocol will cease to apply. So what are those situations? And we can see that if the claim is subsequently re valued Above the £5,000 limit for pain suffering and loss of amenity or the £10,000 limit overall. Then the protocol will cease to apply. Remember claims for credit higher. Do not come within the ambit of the new protocols online portal, they're just not there. So when court proceedings are started, if the claim can't be settled in the new portal, the court must be informed of the non protocol vehicle costs and credit higher including credit Higher, which haven't been settled. And you know for that. Take a look at paragraph 11.1 sub two of the new protocol. Um The claim for non protocol vehicle costs will then be added to the portal claim When proceedings are started and paragraph 11.5 deals with that. So I direct you to that. But if adding the credit higher claim means the overall value of the Claim then exceeds £10,000. The protocol will no longer apply. So this means that many claims may be pushed out of That new protocol by the credit higher. So it may be that they clear that £10,000 by sort of limit if you like. Um Just by adding that credit hiring um you know once it's been sorted if you like that the credit higher is in existence and it hasn't been settled. Another reason why the protocol might cease to apply, well one of the parties becomes a protected party. So if one of the parties loses their capacity, their mental capacity then the protocol will no longer apply. 3rdly, if the compensate er notice vise notifies the claimant through the portal that the claim is unsuitable for the portal because there are complex issues of fact or law and you'll note that whoever makes that call the compensate er making that call would have to say why that is why do they take the view um that there are complex issues of fact or law. And again, you know, we could say so much more about this because this is one of the reasons if you like for exiting the existing actually both the R. T. A. And the LPL protocol. And you know, we haven't yet got a sort of checklist of what might equate to a complex issue of fact or law as far as the court is concerned that maybe a number of matters. Um I think probably what we do know is the very existence of a credit higher claim of itself. Probably not. Um But other than that it's an open field and we'll find out um just what the court will accept as a complex issue of fact or law. We've already mentioned this but it needs to appear here. When will the protocol cease to apply? It will cease to apply where fraud or fundamental dishonesty is alleged. So once that's alleged then the protocol is no longer relevant. The protocol will not apply any longer. And then lastly, the protocol will cease to apply if it continues to be disputed that the accident caused the claimant, any injury following disclosure of a medical report. And again this is you know, a sort of copy if you like from the R. T. A. Protocol where a defendant sort of continued or even for the first time they dispute causation will mean that the claim will leave the protocol claims where causation is disputed. The existing R. T. A. Protocol will not continue in that protocol. And here exactly the same provision comes along. So continued disputing of causation. So for example, you know, you're kind of low velocity, let's say type argument would mean that the claim would leave this new portal, they simply can't be dealt with in it. Um It's interesting I think to say that um a total denial of liability by the compensate er within the new protocol triggers the claimants right to bring court proceedings to determine liability. Um For that I refer you to Paragraph 6 12 of the new protocol. Um It's such the claim will leave the pro the portal. And Again, remember we talked about the new practice direction 27 B that's been included. Check that out because that gives the detail of what would happen once that claim leaves the portal. But if the court decides the defendant is liable for the accident in full or in part and the claim doesn't exceed the protocols. Financial limits, the court will stay the proceedings and direct that the parties must follow the steps in sections 78 and nine of the protocol. So effectively what can happen is a claim can start in the portal leave and then return to the portal for the parties to negotiate on quantum. And that really is a huge departure from what we're used to with the R. To the E. R. T. A. Portal. You know once the claim leaves that portal that's it, it's over and the claim can never return. That's not the case with this protocol. The new one claims can go back in um for the parties to resolve if you like the quantum aspects once the courts decided on liability. So let's talk a bit about denial of liability and what that means. Um And I think the first thing to say is that you know, steps where liability is denied by the compensate. And again We find this at paragraph 6:12 of the new protocol where the compensate er has denied liability in full and the claimant wants to continue their claim. This is where the claimant must start proceedings for a determination on liability. And what that means is the court's going to decide whether or not the accident occurred through the fault of the defendant. And if so whether the compensate er is liable in full or in part and it goes on to say that before starting proceedings, the claimant may challenge the company compensate as denial via the portal by stating that the decision is challenged and setting out their arguments in support of the challenge. And at this point the claimant can also upload further evidence armed to the portal for the compensated to consider. So there is a sort of ability if you like for the parties to engage in. Uh We could call it negotiation I guess. Um The the lake claimant and the compensate er will be able to engage if you like in negotiation about the liability decision that might have been made by the compensate. Er um What's interesting about that is there appears to be no time limit for that response. Um Whether that's an oversight or a deliberate matter. It's hard to say isn't it? Um But the challenging of the compensate as denial via the portal um does not have any time limits upon it. So there's no there's no restriction for when that can happen which kinda does lead us into a discussion of time limits generally. And we're so familiar with the R. T. A. Protocol and the LPL protocol in terms of time limits. And here again we need to be alert if you like to those time limits um At 6 15 in the protocol. In the new protocol we need to be aware of this provision and that is that where no response is provided by the compensate er within the relevant response period. 30 or 40 days from the claim being accepted on the portal liability will be taken to have been admitted in full by the compensate. Er Now, effectively then the claim is then treated under this protocol as one where liability has been admitted in full and the protocol will continue to apply. Now this is a major difference isn't it? As compared with the existing Arte protocol where procedural default leads to the claim leaving that portal here. We know that a failure if you like to give a response means that by default effectively the compensate er has admitted liability and the matter continues in this protocol um Notes that the 40 30 40 Day difference from the 40 days effectively is where the motor insurer database search doesn't identify a compensate er and the claim is to be dealt with by the M. I. B. Or its agents. And again, Um you know, the complexities of when the 40 day period is going to be relevant on when the 30. Um it's hard to see how those complexities could be really appreciated by the Lake client. No, no sort of the reason why they should be, but that's quite complex. And I think even for practitioners we find complexity in that um you know, deciding when when On uh an insurer is going to be an article 75 insurer and when they're not um is complicated enough for someone with experience in this area, goodness knows what this position will be for les clients in trying to work out which is the appropriate time period. Um If liability is denied or denied in part the compensate as response on liability must also be set out in the defendant's version of events and that needs to be accompanied by a statement of truth and any evidence in support needs to be provided. Now this is an Alternative. Um there is an alternative I should say where if the insurer can't for a good reason, get a statement of truth from their policyholder within that 30 day period. they can provide a witness summary with a statement of truth signed by a representative of the insurer. And again, you know, the complexities of when and in what circumstances that will be a reasonable response. Um It's going to be really, really difficult I think for um Les clients claimants to be able to work out when that's going to be appropriate, but it is a provision in the protocol. Um The other possibility in relation to liability admissions is that unlike the existing R. T. A. Protocol the new protocol is such that a claim will not automatically fall outside its ambit. If liability is not admitted, we've seen that um if it's not admitted in full it doesn't necessarily mean the claim leaves if liability is admitted in part you know. So perhaps it could be a split on liability percentage wise an allegation that the claimant might have been contributing really negligent in some way. Then each party can Make up to three proposals on liability through the portal and each proposal must be an improvement on any prior proposal. So there's a sort of forced period if you like. Of negotiation, horse trading whatever you want to call it. Um In terms of the Lake Line and the compensate er where there's an allegation of any contributory negligence and as we said earlier that in terms of causation, the claim will also not fall outside of the protocol if the defendant disputes that the accident caused the claimant suffer injury or at all, or the extent of the injury they in fact suffered. So when that's the case provided liability has been admitted, the issue should be dealt with in the medical expert report. Um I think if the compensate er argues, for example, that the claimant contributed to the injuries by not wearing a seat belt, they're going to need to raise that argument in their response and the medical experts going to be asked to comment on that in their report. Um We should say we hinted at this earlier that the protocol and this is as far as it goes, discourages or use that word, the settlement of claims without supporting expert evidence being adduced. So again we've got a best discouragement of um insurers trying to settle claims before any medical evidence is available. A massive problem um in the old protocol. And indeed long before that actually um I want to say a bit about admissions generally. And one of the things I wanted to say was that in a Paragraph 8.9 on receiving the medical report, the compensate er can decide that there is a dispute whether the accident caused any injury. And so that includes cases Where the compensating has previously admitted liability under paragraph and at 6.61 a. And B. Um So we'll include both of those. Just say a little bit about admissions on receiving the medical report. The compensate er may decide that there is a dispute, for example whether the accident caused any injury. And that includes cases where the compensate er has previously admitted liability and I'll draw your attention at that point, as on the slide to paragraph 6.61. Uh A. And B. Or B. Actually or where the compensation is disputed that the accident caused any injury under paragraph 6.61 D. So in those circumstances um what we see really is that there is an option if you like um for the compensate er to raise a causation issue later. And if we look at the second paragraph on your slide, you'll see what I mean where the compensate er wants to dispute or continue to dispute That the accident caused any injury. They need to notify the claimant through the portal within 20 days of receiving the information in paragraph 8.5 and that's the Medical report and they are evidence that the claimants put forward. That's what set out in paragraph 8.5 and they need to give their reasons for doing so. So it's interesting I think that if liabilities admitted or there's a deemed admission, the protocol provides that the admission is binding on the insurer for the claimant's claim for P. I. And other damages not credit higher. But if those losses are not capable of agreement in the portal and the claimant issues proceedings, the repairs the higher must be included in the claim form and the portal admission that binds the compensate er extends to those losses also. So it's interesting here that we have a similar situation to the existing Arte Protocol and that similar situation is once you've made an admission in the portal, that admission is going to be binding once the claim is no longer in that portal. And that's exactly the same as the existing to portal. There does in respect of withdrawal because I think we do need to say something about that remain the ability for the insurer to withdraw the admission when causation is raised. Okay? So that and again, just the same as in the tia portal, there is a window if you like, of opportunity for the insurer to withdraw that admission when they're when causation is raised. Um and the admission isn't binding on linked claims, passengers or counterclaims. We know that from the existing process. However, whilst that appears to be how the rules are drafted, that kind of an admission is likely to be of quite decent evidential value in any separate claims and it's likely that there's going to be satellite litigation in this area. In fact, it would be astonishing if there wasn't because of course there has been for the existing to portal. Um So we we will expect to see our party is attempting to use admissions that were made in the small claims Track protocol for linked or other claims, perhaps passengers and other occupants of that of the vehicle. In terms of admissions, I think we need to spell out exactly what the compensate er options are because it's not entirely um straightforward and it's certainly not the same as the existing R. T. A. Protocol. Firstly the compensate er really we can say it's got four options in the new small claims Track Protocol And the conversations four options are they can admit liability in full, they can admit liability in part they can deny liability or they can admit fault but dispute that the accident caused any injury to the claimant. Um interestingly, um I suppose we could add 1/5 actually because we talked about this earlier and perhaps That 5th was what they can do absolutely nothing um within the response time and we know then doing absolutely nothing saying nothing means that there is a default admission that the protocol will decide has happened. So if the compensate er fails to provide that response within the time limit liability will be taken to have been admitted in full if these other options happen. So if the compensation denies liability in full or in part for example their response on liability must be set out in the defendant's version of events and they must provide any information in support. So that could be photographs, witness statements, dash cam footage, that sort of thing. The compensate er can upload the evidence until the point the compensate er responds to the contents of the court pack. So again ongoing ability if you like for evidence to be uploaded. Again contrast that with the R. T. A. Protocol where of course we know that there is a let's put it this way, a window of opportunity for both parties to get their evidence together. And that is of course at stage two if that doesn't happen um the court will not allow further late evidence to be included. That's different to this protocol in quite a significant way actually. Um However, in terms of evidence um paragraph 5.10 sub three makes this point in the new protocol and this point is that the timely disclosure of evidence Is encouraged by the portal as per 5.10 sub three of the protocol. So that paragraph um says claimants can upload photographs, sketch plans, witness statements dash cam, what else? Video clips, whatever else they've got or other documents you know to show that the defendant was at fault for the accident and the uploading can be done at Any time. Up to the point where the climate creates the court pack under section 12. However, the claimant should normally allow at least 10 days for new evidence to be considered before proceedings are started. So some breaks, if you like for the compensate as here, that they get that window of 10 days for them to consider any evidence that the claimant is uploaded. Um The court will take account of evidence uploaded under paragraph one to determine liability. And it's important that the claimant upload all evidence on which they want to rely. And you know, we get this caveat if you like, not quite as clear as the existing protocol, the protocol, but certainly the same messaging. And that is that the court may decide not to allow new evidence to be considered if it's produced after proceedings are started, so we have that same idea um that new evidence may not be considered if you've left it too late. I after proceedings have actually started, we say a little bit about medical reports, and I think one of the things to say about that is that the Medco process, um which so many of us have enjoyed using, um Obviously clearly being sarcastic about that is now going to be something that unrepresentative claimants are going to have to use. Um And it's been extended to these situations cases where the injuries are less than £5,000 um rather than just soft tissue cases. So every claimant will need to obtain a medical report before their claim can be settled. And I think it's important to note that if an element of the claim involves whiplash, every claimant will need to obtain a medical report before that claim can be settled. So the claimant will need to receive a copy of the report and they can then elect when to disclose that to the insurer as per the current process. But interestingly, if they want to get a second report a further report, there is no requirement for the claimant to disclose the first report to the insurer before the subsequent report is obtained and that is different to the r to process that we've already got. That's a different provisions because as we know, um in soft tissue injury cases, Medco reports want to get a second. You must as a claimant disclosed the first. That is not the case here, and that's actually quite an interesting difference if you like. Um permission. Again, these are similar provisions will normally be given for only one expert medical report in respect of whiplash injuries, and any reports should generally be fixed costs. So Medico so we know that that's the case. The key exception is where the claimant obtains a report from a a suitably qualified expert in respect of a more serious injury um suffered on the same occasion which might also deal with the whiplash injury. So again we've got the and again for litigants in person confusion certainly, but certainly confusion if you're a litigant in person about whether or not you need to use Medco or you don't need to use Medco and you know it will be difficult I think for claimants to work out situations where Medco will be compulsory. But certainly more serious injuries suffered on the same occasion will mean that Medco is not, if you like. The first port of call for claimants in these cases. In terms of the instructions to be sent to the medical expert uh The first medical x medical report must provide the claimants description of their injuries entered on the portal. Secondly provide the claimants responses about whether they consider that whiplash injuries to be exceptionally severe or if there are any exceptional circumstances that have an impact on their pain suffering and loss of immunity. Um It's interesting I think that you know we need to sort of think about the extent to which the claimant is going to be in a position if you like to try to define what might mean exceptional circumstances. Really difficult I think for claimants to to know what that means. Especially since we're not of course given a definition of it. Um And certainly you know it's going to be confusing I think for claimants to understand quite what that means. Um If we turn now to um the the other three reasons and let's take a look. Um Certainly number three, let's take a look at the next slide. Yeah. If the compensated disputes that the accident caused any injury to the claimant and their reasoning. So you know if there is um the possibility if you like that the compensate is suggesting that the accident may not have caused a particular injury, it will be important for um the claimant to provide information so that the medical expert can comment on the impact on the diagnosis and prognosis. Remember we've got this provision in the existing are to process including whether the accident caused injury. Um If the claimants account is found to be true um or if the defendants account is found to be true. The other things that are going to need to be included in the medical report. If the compensate er argues the claimant contributed to their injuries by not wearing a seat belt and again um one would hope that most of the experts providing the medical reports will be familiar um with the the appropriate test. Um And that you know they will be aware that the issue here is on the balance of probabilities and of course um exactly what appropriate wording um to use again, you know the claimant, the Lake claimants not going to be um someone who's going to be aware of that almost certainly. And so we're having to leave that in the medical experts hands. And then lastly it will have to include the defendant's version of events where the compensate er has admitted liability but provided a different account now so far particularly that last paragraph is exactly the same as the situation in the existing protocol where the injuries are so called soft tissue. So we're talking exactly the same sort of thing, The experts, the one who's going to have to take on board the defendant's account, the claimants account and then if you like to explain why things are different um The obvious example would be low low velocity impact where perhaps the defendant is suggesting that the impact was extremely low speed and caused very little disruption. The medical expert will need to give a a view about what impact that might have on their opinion in terms of the injuries and in terms of the prognosis just as we do now, um Medical records Again, interesting I think um we've got the same provisions in relation to medical records um as we have in the existing portal and here there are paragraphs 6 7.10, sorry. In a claim made under this protocol, it's expected the medical expert will not need to see any medical records. Any review of medical records must be justified within the report. Um And secondly, where the medical records have been reviewed, the medical experts should identify with in that report the records that have been reviewed the records considered relevant to the claim and include copies of any records which the expert considers relevant to the claim. Um And they must be provided by the expert when the report is sent to the claimant and those extracts must be provided when that sent onto the compensated. Just the same as we do now in the R. T. A. Portal where those records are needed by the medical expert and there's a charge for obtaining the records. That charge can be claimed as part of the claim for the experts Fees. So, again, justification for obtaining the records, but I don't think any of that is particularly surprising because this is exactly the same provisions as the existing protocol where claims are under £10,000 and the assumption is medical records will not form part of the party. So it's really just been lifted that provision from the existing process. Um one thing we have to talk about is the whiplash tariff for want of a better term, and whiplash injuries are defined within the protocol as an injury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence, where the duration of the whiplash injury or any Of the whiplash injuries does not exceed or is not likely to exceed two years or would not have exceeded or would not be likely to exceed two years. But for the claimants failure to take reasonable steps to mitigate its effects. Couple of interesting things. There one is of course we've got the obligation to mitigate um which is tied in if you like to um the tariff and the definition. So claimants who perhaps haven't availed themselves of physio or any other um assistance if you like, rehab will be punished if you like. If the idea is well this injury would have been resolved within two years had you reasonably undertaken that kind of rehabilitation? That argument is enshrined within the protocol. Um But also I think, you know, we've got this specific definition of whiplash which is very different frankly from the soft tissue definition that we had or have in the R. T. A. Protocol that we already have the old one if you like. Let's call it that now because of course that mentions nothing about the location of the soft tissue injuries. There is no mention of neck, back or shoulder and indeed were aware the soft tissue injuries within the existing protocol um could happen to any part of the body here. It's very very specific. This mirrors the definition of whiplash injuries under section one of the Civil liability act 2000 and 18. Um Clearly it doesn't extend to soft tissue injuries which are part of or connect to another injury which is not whiplash as defined by the act. So minus psychological injuries we should add. The tariff also applies where minor psychological injuries are suffered on the same occasion as the whiplash injury um Slightly concerning and perhaps not very surprising that there is no definition of minor psychological injuries within either the new whiplash regs or the protocol. Um the introduction to Chapter seven of the judicial College guidelines In the latest edition anticipated that that such a definition would be provided and you know it isn't. Um we have to expect the courts will be influenced by the definition of minor injuries in chapter 13 of the J. C. Guidelines which state that while this is normally confined to injuries recovering within three months, cases involving for example travel anxiety, minor scarring or with symptoms last for more than three months may be included in that chapter and the amount of compensation that can be awarded for whiplash injuries and minor psych injuries are fixed by law. So Regulation two sub 1 sub of the whiplash rigs includes that statutory definition aside from additional minor psych injuries which are covered by the tariffs. And we'll look at the slide in just a moment to see what we mean. Additional non whiplash injuries suffered by the claimant will continue to be valued in the traditional manner by looking at the Judicial College guidelines and relevant case law. Now, this is a bit of a mess, frankly, it's not clear how the courts are going to approach assessment where they're a tariff and non tariff injuries side by side. And although it's anticipated that the approach will continue to be one which will look at the totality of the claimants, injuries. Case law will be needed to see how those claims are going to bear out in practice. So there's real confusion, potentially their satellite litigation, we need to watch the space to find out what the courts are going to do about this, because it's far from clear how that's gonna work. Let's take a look at the tariffs. And you will see on the first column uh styled up regulation, to someone a that we have the amount for pure, if you like, whiplash injuries. The tariff amount on the far right at paragraph, Sorry, 2.1 sub b. So on the far right we've got the tariff figure where the whiplash injuries and minor psych injuries are included. So it's just it's a very small amount more. So you know you can see the slide for yourself. Um The figures obviously fairly shocking if we're used to the kind of figures that would have been awarded prior To the tariffs coming into being. So you know you've got somebody who may be suffering from more than nine months. Um maybe not as many as 12 who's only going to be looking to recover a max of 1320 if they don't have any minor psych injuries. In addition if they do then we May be looking at we will be looking at 1390 and if I take you to the next slide you will see that the more serious end, If you like, more than 12 Months, but no more than 15 Were up at our £2,040 of pure whiplash. And the absolute maximum for pure whiplash injuries is 4215. And that's where someone's been suffering for more Than 18 months up to two years. That's the maximum they're going to be able to recover. Um They're fixed by law. So there's no way of amending um those Figures um Save one way and the one way is in exceptional circumstances. Um They can only be uplifted in exceptional circumstances and in that situation only Um by up to 20% um pursuant to regulation for sub three of the whiplash regulations um It's likely to be a high threshold. You know, I think we can confidently say that where we've seen the phrase exceptional. Um The court is not going to be quick to apply. Um That measure, by the very nature of the word exceptional suggests that it will not happen very often. So it's likely to be a high threshold and the court is going to need to be satisfied that those injuries are exceptionally severe or for some reason that the claimant circumstances are exceptional. Um Under the current J. C. Bracket guidelines in the Judicial College guidelines the upper bracket For a whiplash injury lasting two years is £7,410 under the new tariff is 4,215. Um it could go as high as 5,058 with a 20 uplift for exceptional circumstances. Um It's arguably pretty unfair because the awards for pain suffering, loss of amenity will now really depend on the mechanism of the injury. So you know a whiplash injury sustained in a factory will be assessed by way of the J. C. Guidelines. But a whiplash injury following a road traffic accident tariff. Um You know there may be debate as to the meaning of minor psych injuries because it's not defined so you need to watch that space but I think claimants are likely to be incentivized if you like to argue um that their cycle, logical injuries are far from minor. Um as such injuries are only going to attract a tiny amount of between 20 and 135 lb extra regarding that second column that we just looked at. Um P. S. L. A. Was never a question of simply adding up the guideline amounts for physical and psychological injuries. And you know there may be arguments I think about the whiplash definition by arguing that soft tissue injuries that have been sustained, parts of the body that are not the neck, back and shoulders don't fall within the tariff. There's a huge amount of room for argument, satellite litigation and uncertainty and a minefield really for claimants and litigants in person. We mentioned that the insurer can allege fraud or fundamental dishonesty at any point in which case the claim will they're no longer proceed under the portal. Um If that's the case then the matter should fall into the existing personal injury protocol. Um the one that we that we know and when the claimant comes to issue proceedings, it will usually be allocated to the fast track and costs limited to fix recoverable costs or if it's fraud then potentially allocated to the multi track in terms of causation and sort of, you know, low speed impact claims. The insurer Will now be able to indicate in that 30 day response period that they are admitting fault but not that they are admitting that any injury was sustained and the claim will remain in the small claims track portal where that happens we would expect. And indeed the portal expects that the insurers response should set out their policyholders version of events and the medical expert must be told why the compensate er is disputing causation. So the medical experts going to be arbiter of commenting on whether the accident caused any injury. If the claimant or defendants account is found to be true, a little bit like the attempt that was made to amend the R. T. A. Portal to include that arbiter decision on the part of the medical expert. Um If the claimants unrepresented, the insurers always going to pay for that medical report, even if causation is disputed and should be clear that if causation is raised at the outset once the claimants disclosed that medical report, the insurer can then decide do they want to maintain their denial of causation or deal with the claim? If causation remains in dispute then the claim will drop out of the process and the claimant can either abandon their claim or of course they can Got liberty of course to issue proceedings. Um case on issue likely to be allocated to the fast track and fix recoverable costs are likely to apply. Part 45 has been specifically amended to provide for fixed costs in cases which drop out from the SCT portal but do not go into the R. T. A. Portal and are not allocated to the multi track. So we've got the cost rule amended to bring into being exactly of course what was what was intended, deadline wise. Um the compensate er must make an offer to settle a claim within 20 days of receiving documentation from the claimant and even if not all the documentation or evidence in support for claim for protocol losses is provided. An offer must still be made within 20 days on the heads of loss which have been evidenced. So it's compulsory that within 20 days of the information being sent to them and offer must be made and all offers Made under the Protocol remain open for acceptance for 10 days after they are made. But claimants need to be aware there after they could be withdrawn using the withdraw off a facility on the portal. And for that Check out paragraph 8.18 sub seven. We should also note that under paragraph eight 19 sub four. An offer which has Been rejected may still be accepted at a later date unless it's been withdrawn in accordance with paragraph 8.18 by using the except rejected off of facility on the portal. So Not unlike part 36 if you like. Offers are always in existence unless they've been formally withdrawn. When a protocol settlement offers accepted, it must be paid within 10 days All 30 days if C. R. U. Certificate is awaited and similarly if an interim payment is requested and again that's possible within the portal. The compensate er must respond to that request within 15 days and that set out at paragraph nine four of the protocol. So there are deadlines for compensate as to meet in terms of costs. A couple of things to say about that before we come to the end of our webinar. Um In line with the current position on costs in the small claims track Costs will be unrecoverable in relation to claims falling within the increased small claims track limit. Save for those set out in that new practice direction 27 B claims leaving the R to small claims protocol because their value is believed to exceed the increased limits are subject to the to Pre Action Protocol. A stage one, Stage two costs will apply where liability is admitted in full. All other cases that are going to leave that protocol, save for those where causation is an issue are subject to the Pre Action Protocol for person injury claims and subject to fix recoverable costs set out in section three A. Of Part 45 of the rules. So where a claim compensate er is going to argue that claims started in the art to Pre Action Protocol and that it falls below the small claims track limit. The claim will only drop out of the R. T. A. Pre action protocol and go into the new small claims protocol if the claimant agrees, if the claimant doesn't agree and at the conclusion of the claim, the claim, the court doesn't find the claimant had a reasonable belief the claim was worth in excess of the small claims. Track limit. The claimant will recover no costs. So there's the sort of threat if you like hanging over the claimant. Conversely, if the court determines the claimant did have a reasonable belief their claim was worth more than the small claims track limit, the claimant will recover fixed recoverable costs outside the R. T. A. Pre action protocols. So we can see if you like some connections there with the existing Pre Action protocol, the tape reaction protocol. Um So I set out on your slide is the position on costs where claims are leaving the new process. Let's just lastly take one look. And this, you know, is we could talk for so much longer about the interface if you like between the existing R. T. A. Portal and the new small claims track portal. But here's just one reminder of in the existing to protocol. The possibility if you like for the defendant to kind of spot a small claim and you know their their first opportunity to do so. So in the initial consideration periods and once they've got the effectively the stage to settlement pack sent to them, that's the initial consideration period in the existing R. T. A. Portal. If they notify the claimant that they consider that the small claims track will be the normal track for that claim. You will see that the claim just simply doesn't continue under the protocol. So there's you know, there's a connection if you like. Um All we've got in our new process is of course that the small claims track limit has gone up to £5,000 for Artas involving whiplash injuries. But the provision is the same once anybody calls out the insurer calls out if you like that they consider the claim would more properly be small claims track, then the protocol is at an end. And, you know, as I say, in terms of the interface between the existing protocol and the new small claims track protocol, we can say much more and indeed, we may say much more in subsequent webinars to try and link the two together and see how the two are going to work together. I hope that's been useful as an introduction to how the new a small claims track protocol is may well work. I'm sure we will get involved in it at some point or another, um, claimants needing help and perhaps some firms deciding to get involved, um, in, you know, dealing with these claims. So hope it has been helpful. Thank you for sticking with it and listening, and I hope to talk to you again soon. Thank you very much.
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