Out-Law Guide | 02 Sep 2013 | 9:59 am | 8 min. read
From 1 August 2013 organisations will have to deal with personal injury claims through a Government claims Portal. This guide explains how the Portal works.
The requirement to use the Portal will apply to organisations on the receiving end of employer liability (EL) and public liability (PL) claims and will have to deal with those claims 'effectively and speedily' through the Portal. Failing to do so will result in higher costs for organisations.
The Portal must be used in relation to claims of up to £25,000 and to impose speedy payment of damages. Disease related claims are excluded.
Any organisation or its insurers faced with such claims will have to be registered on the Portal. It is essential that organisations understand the new system and process
How does the Portal work?
The Portal is designed to manage EL and PL personal injury claims efficiently and quickly. The procedural framework set out in new pre-action protocols impose tight deadlines for responding to claims in a bid to reduce the costs involved.
The Portal operates by way of a system of notifications and responses that are inputted into the Portal by the claimant and the defendant or its insurers.
A claimant who is seeking compensation for a personal injury claim must register the claim on the Portal by completing and registering a Claim Notification Form (CNF), which is like a letter of claim. It must include sufficient information for the defendant to investigate the claim. If liability is admitted, the claim stays within the Portal. If liability is denied or an allegation of contributory negligence is made, the claim falls out of the Portal to be dealt with in the normal way that personal injury claims are dealt with by the courts.
A claimant can remove a claim from the Portal if there are complex issues of law or fact. However if the court holds that this was unreasonable, then only fixed costs will be awarded.
Advantages of using the portal
The Portal can assist in the settlement of straightforward personal injury claims quickly and within a framework of low fixed costs. For example, claims with a value of up to £10,000 will have fixed costs of £900 and claims of £10,001-£25,000 attract fixed costs of £1600. This represents a huge saving on the present system.
The costs of EL and PL claims that fall out of the Portal, such as because of a failure to respond within the prescribed time frames, exceed substantially the fixed costs set under the Portal.
What do organisations need to do?
To ensure that EL and PL claims can be dealt with through the Portal, organisations need to have in place policies and procedures that allow them to respond to the strict timeframes required to process the claims.
Stages of the portal
In an EL claim, the claimant must undertake a search of the Employers Liability Tracing Office (ELTO), a database of employers liability insurers where the claimant by entering the prospective defendant's details, can ascertain the identity of the relevant insurer.
If an insurer is identified, then the CNF is sent directly to the insurer via the Portal. Organisations that have their claims handled by a claims handler and/or its insurer will need to discuss the best course of action with the claims handler and/or insurer in respect of who should be registered on the Portal to deal with such claims.
Organisations that handle claims in-house must register with the Portal and ensure that their details are registered on the ELTO register, and if already registered, ensure that the details are correct.
There is no database of public liability insurers. Instead the CNF will be sent by hard copy to the defendant direct if no insurer has been identified; this is also the case in EL claims where the insurer cannot be traced through the ELTO.
In respect of both EL and PL claims, if there is a deductible, the organisation should register with the Portal and allow claims handlers and/or its insurers access to the claim in the event that the claim exceeds the deductible and has to be met partially by the insurer.
Stage 1 - Responding to a claim
Where a defendant or insurer has been sent a CNF, an acknowledgement must be sent electronically to the claimant by the next working day following receipt - the claimant having provided an email address in the CNF
If a defendant receives a CNF but the claim will be dealt with by its insurers and/or claims handlers, it should forward this to the insurer and advise the claimant accordingly. The insurer should then acknowledge the claim within the next day receiving the CNF and the claimant should then submit the CNF direct to the insurer.
The defendant or insurer then has 30 working days to respond to the CNF in EL claims and 40 days in PL claims and the response will be one of the following:
The response will be provided through the "Response" section of the CNF and sent to the claimant via the Portal. If the response is anything other than an admission of liability then the claim leaves the Portal. A denial of liability must be supported by the reasons for denial.
If the claim falls out of the Portal then the usual pre-action protocols apply and the CNF is treated as the letter of claim and the time limits begin from the initial acknowledgement of the claim by the defendant or insurer.
This process is known as Stage 1 and is possibly the most important stage as the key decision on liability has to be made at this time.
Defendants must also register the claim with the Compensation Recovery Unit, which works with employers and insurers to recover amounts of social security benefits and costs incurred by NHS hospitals and Ambulance Trusts as a result of the personal injury during the Stage 1 process.
Stage 2 - Admission of liability
If liability has been admitted and the defendant is handling the claim in- house, the Portal can be used to deal with settlement of the claim quickly and cheaply.
The defendant is under an obligation in EL claims to provide details of loss of earnings within 20 working days of the admission of liability.
The claimant is obliged to provide evidence in support of the claim for damages, including any medical evidence and evidence in support of special damages. This is described as the Stage 2 Settlement pack and it must include:
This must be sent within 15 working days of approval of the final medical report and/or any non-medical report.
The defendant upon receipt of the settlement pack must pay Stage 1 fixed costs to the claimant.
Upon receipt of the Stage 2 Pack, the defendant has 15 days to make an offer of settlement or agree the offer made by the claimant. There is then a further 20 days for negotiations between the parties. Any counter offer made by the defendant must explain any reductions made in respect of damages to focus the parties on areas of disagreement.
If settlement is agreed the defendant must pay the agreed damages along with Stage 1(if not already paid) and Stage 2 fixed costs and agreed disbursements within 10 days of the agreement.
As with Stage 1, if time limits are not adhered to the claim can be taken out of the Portal and there are increased cost consequences.
Within Stage 2, the claimant can seek additional medical report if necessary and non-medical experts can be instructed if required to value the claim.
If a further medical report is necessary an interim payment can be requested by the claimant via an Interim Settlement Pack (ISP) to the defendant, in support of the request and the protocol process be stayed for a suitable period.
The claimant will indicate in the SIP the value of the interim payment that is being sought along with evidence in support. A payment of £1,000 is presumed to be in relation to general damages only and any amount over this sum is in relation to special damages.
Where the payment is for £1,000, payment must be made within 10 days of receiving the ISP and with any payment greater than £1,000 within 15 days – if this payment is to be delayed, there must be an explanation from the Defendant must explain why.
There can be more than one interim payment in respect of claims valued at greater than £10,000.
If interim payments are not made within the time limit, then the claim falls out of the Portal and the claimant can start proceedings and make application for an interim payment in the normal way.
Similarly if the claimant does not agree the amount provided in the interim payment they are able to issue proceedings and apply for interim payment. If no award is made or it is equal to that offered by the defendant, only Stage 2 costs are awarded for the application.
At the Stage 2 period there are numerous possibilities for the claim to fall out of the Portal. Most of these are in relation to the defendant failing to comply with time limits.
Failure to settle
If the parties cannot agree settlement within the negotiation period, then the claimant will send a Court Proceedings Pack (CPP) to the defendant.
The CPP must include the claimant's final schedule of losses and the defendant's counter schedule along with the comments made by both parties. It also includes the final offer of settlement made by both parties.
The defendant must check the CPP and if any amendments are to be made they must be conveyed to the claimant within five days. The CPP should be returned to the claimant with the name and address of legal representatives, if they are nominated to accept service.
Within 15 days of receiving the CPP, the defendant must pay to the claimant:-
If this procedure is not complied with, the claimant can give notice that they are to issue proceedings and that the matter is no longer within the Portal.