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Some more clues about when the Portal and fixed recoverable costs changes will happen

While the Civil Procedure Rule Committee meeting last Friday 8 March was expected to sign off the new Portal protocols for RTA and for EL/PL claims, this did not happen, and instead the job has been put back to the next meeting to be held on 20 March.  The MoJ's hope is that on the expanded Portal, users should have all that they need in terms of the rules by the beginning of April, ready for the costs changes which are happening to the RTA Portal at the end of April, and for the introduction of the EL and PL Portal and the expansion of the RTA Portal three months later at the end of July.

There is no further definite word yet on what "end of April" and "end of July" in terms of implementation dates means yet, but it now seems clear that the MoJ are aiming at either 30 April or 1 May for the first set of changes, and at 31 July or 1 August  for the second batch.  It is now clear that if it is not going to be those actual dates, it is only going to be a day or so either side.

What the CRPC did do last Friday was to look at the implementation dates for the fixed recoverable costs (FRC) regime.  A further statutory instrument is expected by the end of this month setting out how FRC will come in, and how they will impact on existing and new cases, so that by the end of this month the position should be relatively clear for the first implementation date at the end of April, and for the second date three months later.

Based on the information currently available, the following are our best estimates as to how the Portal and associated FRC changes will be implemented.

RTA claims

Cases submitted to the current £1-10k Portal pre 30 April or 1 May will continue under the current Portal protocol and current FRC regime (ie excluding the reductions to FRC recently announced) whether they remain in the Portal or subsequently drop out of the Portal.

Cases submitted to the current £1-10k Portal after 30 April or 1 May but before 30 July or 1 August will be subject to the current Portal protocol, but also to the new FRC regime with its reduced costs, whether they remain within the Portal or subsequently drop out.

Cases submitted to the expanded £1-25k Portal after 30 July or 1 August will be subject to the new Portal protocol and the new FRC regime both inside the Portal and where they fall out of it.  

EL/PL claims

The new Portal protocol process will only apply to new accidents occurring after 31 July or 1 August (in disease claims where the letter of claim is sent after that date).  This is the same principle used when the RTA Portal was first introduced. 

The new FRC regime will only apply to those same accidents, so covering those cases when they enter and remain in the Portal, but those cases will also be subject to FRC if they drop out of the Portal.

It will therefore be some time yet while existing claims and new claims in respect of accidents happening before 31 July or 1 August work their way through the current system under the pre-action protocol for personal injury claims or litigation without of course any fixed costs applying, before the benefit to insurers can be had from the shift to the new expanded Portal but more significantly to FRC both inside the Portal and for claims dropping out. 

What other issues should insurers be looking at?

Insurers should expect to have a small percentage of claims, probably less then 5% depending on claims profile, which are current but no notification has been given of the claim being conducted on a CFA or CCFA with a success fee taken out before 1 April. The PSLA aspect of these claims will be worth 10% more after 1 April so there is particular incentive now to try to conclude this type of case before 1 April.   

Those same claimants in personal injury claims who do not have a pre 1 April CFA/CCFA with a success fee but also do not have an ATE policy taken out pre 1 April, will have QOCS protection from 1 April against liability for defence costs, and insurers will need to know in which cases this position has arisen. QOCS is not provided to claimants who do have pre 1 April CFA/CCFAs with success fees or ATE policies, but those claimants are likely to be able to rely on the ATE indemnity as such a policy is in reality likely to have been taken out.

The increased penalties for defendants failing to beat claimants' Part 36 offers will come in on 1 April in relation to all existing cases.  These of course include the extra reward to the claimant calculated on the basis of a percentage of damages starting with a payment of 10% on damages up to £500k with an overall cap of £75k.  Expect many more claimant Part 36 offers next month including the possibility of claimants withdrawing existing offers at the same time.   

Contact

For further information please contact Simon Denyer, Partner, at simon.denyer@dwf.co.uk or call +44 161 604 1551 

By Simon Denyer

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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