Draft rules for the new low value RTA personal injury claims process have now been released, although because of IT issues, the planned start date of the 6th April 2010 has been set back until the 30th April. The good news is that the draft rules closely mirror the Ministry of Justice proposals in September 2009, see our previous report “MOJ Release Statement On New RTA Claims Process”, but key issues have now been clarified.

A new Protocol will be introduced to deal with the pre-issue Stages 1 & 2, and there will also be changes to Part 8 of the CPR to deal with post-issue Stage 3 and to Parts 36 and 45 to deal with costs.

The new Claim Notification Form must be used for ALL RTA claims predicted to be under £10,000, but otherwise the procedural and costs changes apply only to claims on which liability is admitted within the necessary time period. All other procedures, costs and types of claims are unaffected.

The Rules are only DRAFT at this stage. All time limits below refer to working days and for convenience we have separately summarised the procedural differences for children claims:

Stage 1

• The Low Value RTA Protocol (‘the New Protocol’) will apply to all personal injury RTA claims predicted to be under £10,000 (on a full liability basis including monetary losses but excluding vehicle damage and interest) but not small track claims.
• The Claimant will give an email address in the Claim Notification Form (‘CNF’) CLICK HERE – to see CNF in full and all communications between the parties must be electronic. Work is being carried out on developing a secure IT portal system, with 2 means of accessing the portal: via a web browser (for those firms issuing small volumes) or through a system to system application for bulk issuers. Details and the web browser address can be found at www.rtapiclaimsprocess.org.uk. Web browser access to the portal should be available any day now, giving solicitors and insurers 8 weeks to train on the portal and familiarise themselves with it.
• If limitation is about to expire, the claimant’s pleadings should ask for a stay of proceedings and then follow the New Protocol.
• The claimant must make a reasonable attempt to complete all boxes within the CNF, currently 17 pages long, and all boxes marked as mandatory must be completed before it is sent. If the defendant’s insurer considers that there is insufficient mandatory information in the CNF (presumably where mandatory fields have been completed as “Not Known”) then they can decide that the claim should no longer continue under the New Protocol, although the New Protocol fixed costs will still apply.
• The CNF must be sent electronically, but a hard copy must also be posted to the individual defendant at the same time.
• The defendant’s insurer must acknowledge the CNF on the next working day after it has been received and must complete and return the insurer’s response section (i.e. confirm if liability is admitted), within 15 days. The MIB have an additional 15 days to provide their response.
• Where liability is not admitted, the defendant must give brief reasons in the CNF response.
• If liability is admitted the defendant must pay the Stage 1 fixed costs within 10 days. If not paid within 10 days, then provided the claimant gives written warning within the next10 days, the claim will no longer be within the New Protocol and will permanently revert to the normal procedure.
• The claim will no longer continue under the New Protocol where the defendant:
  1. makes an admission of liability but alleges contributory negligence (other than in relation to the claimant’s admitted failure to wear a seat belt);
  2. does not send its CNF Response within the 15 days;
  3. does not admit liability;
  4. alleges there is inadequate mandatory information in the CNF;
  5. alleges that the small claims track applies
• Where the claim falls out of the New Protocol then the normal Personal Injury Pre-action protocol will apply, with the CNF being treated as the letter of claim unless there was inadequate mandatory information in the CNF.

• The claimant can obtain 2 medical reports, from experts in different disciplines, and can recover the cost of 2 more additional reports, from experts in different disciplines, provided either of the first 2 experts say that further reports are needed.
• Once it is served, the claimant cannot challenge the factual accuracy of the medical report/s, so they need to be carefully checked.
• A Stage 2 settlement pack must be sent to the defendant within 15 days of the final medical report being approved by the claimant. The settlement pack must include:
  1. the Stage 2 Settlement Pack Form;
  2. a medical report or reports;
  3. evidence of monetary losses; and
  4. evidence of disbursements (for example the cost of any medical report)
• The claimant can request an interim payment after the settlement pack has been sent, and if so, the defendant must make a minimum interim payment of £1,000 within 10 days.
• On receipt of the settlement pack, the defendant has 15 days to make an offer. There are then a further 20 days for any further negotiations.
• Any offer to settle made at any stage by either party will automatically include, and cannot exclude:
  • the Stage 2 fixed costs
  • an agreement in principle to pay disbursements;
  • the success fee, if applicable
• Where an offer is accepted, the defendant must pay any outstanding damages and fixed costs, disbursements and the success fee, within 10 days of the end of the 20 day negotiation period.
• If the claim has not been completely settled, the claimant should send to the defendant a Court Proceedings Pack (the ‘Pack’), which must contain:
  • the final offer and counter offer from the Stage 2 Settlement Pack Form;
  • supporting comments from both parties on disputed heads of damages; and
  • where relevant, the offer, and if made, the counter-offer
• Within 5 days of receipt, the defendant can allege that the Pack is deficient; otherwise the claimant can proceed to Stage 3 and issue proceedings.

• An application to the court to assess damages must be started by a Part 8 claim form stating:
  1. that the claimant has followed the procedure set out in the New Protocol;
  2. the date the Pack was sent to the defendant;
  3. whether the claimant wants an oral or paper hearing (and suitable dates if oral);
  4. the value of the claim.
• With the claim form, the claimant must file:
  • the Pack (with the claimant and defendant final offers in a sealed envelope);
  • copies of medical reports;
  • evidence of special damages;
  • evidence of disbursements (for example the cost of any medical report);
  • any notice of funding.
• Within 14 days the defendant must file an acknowledgement of service saying whether it:
  1. contests the amount of damages claimed;
  2. contests the making of an order for damages;
  3. disputes the court’s jurisdiction;
  4. objects to the use of the Stage 3 Procedure;
  5. wants an oral or paper hearing.
• Where the defendant opposes the claim because the claimant has:
  1. not followed the procedure set out in the New Protocol; or
  2. filed and served additional or new evidence with the claim form that had not been provided under the New Protocol,
the court will dismiss the claim and the claimant must start proceedings under Part 7.
• Once proceedings are commenced, previous offers cannot be withdrawn without leave and will normally require a good reason. If leave is given, the claim will leave the Stage 3 Procedure and the court will give directions.
• The court will give at least 21 days notice of the date of the paper/oral hearing.
• For paper hearings there will be a written judgment which cannot be set aside, but the judgment will name the appropriate appeal court.

Stage 3 - Children

• Where settlement has been agreed at the end of Stage 2, the court’s approval of the settlement is still required and therefore there will always be a Stage 3 oral hearing.
• As well as the usual documents, the claimant should also provide the court with:
  • the draft consent order;
  • the advice by counsel, solicitor or other legal representative on the amount of damages; and
  • a statement verified by a statement of truth signed by the litigation friend which confirms whether the child has recovered in accordance with the prognosis and whether there are any continuing symptoms. This statement will enable the court to decide whether to order the child to attend the settlement hearing.
• If after two hearings the court does not approve the proposed settlement, then the claim will no longer continue under Stage 3 and the court will give directions.

• Fixed costs (ex. VAT) in relation to the New Protocol:
  1. Stage 1 fixed costs: £400 plus
  2. Stage 2 fixed costs: £800 plus
  3. Stage 3:
     1. Paper Hearing £250
     2. Oral Hearing £500 (plus a further £150 for child cases)
• Where the solicitor is based in London, and the claimant lives or works there, the claimant receives an extra 12.5% of the Stage 1, Stage 2 and Stage 3 paper hearing costs.
• The claimant will receive costs only if it beats the defendant’s offer. If not, the claimant must pay the defendant the same costs as it would have received. The claimant may also face the same order if it has wrongfully caused a claim to fall outside the New Protocol.
• The court may allow a claim for any of the following disbursements, but must not allow a claim for any other type of disbursement:
  1. the cost of obtaining:
     1. medical records;
     2. a medical report or reports as provided for in the New Protocol;
     3. an engineer’s report;
     4. DVLA/ Motor Insurance searches;
  2. an ATE insurance policy;
  3. court fees for Stage 3/if limitation was about to expire/under Part 21 (if applicable);
  4. any other disbursement that has arisen due to a particular feature of the dispute.
• Success Fees for the successful party:
1. 12.5% of Stage 1 and 2 costs
2. 100% of Stage 3 costs.

CLICK HERE – to see the draft New Protocol (Stages 1 & 2) in full

CLICK HERE – to see the draft Practice Direction 8B (Stage 3) in full

CLICK HERE – to see the draft Section VI of CPR 45 (fixed costs) in full