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Whiplash reforms: Publication of pre-action protocol gives substance to new claims process (Part 1)

  • 03 March 2021 03 March 2021
  • UK & Europe

  • Insurance & Reinsurance

Whiplash reforms: Publication of pre-action protocol gives substance to new claims process (Part 1)

Alongside the appropriate commencement regulations and the whiplash tariffs, the pre-action protocol for the handling of claims within the new Official Injury Claim portal (“the OIC Portal”) has also been published. The Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“The Protocol”) provides the basis on which those relevant claims occurring on or after 31 May 2021 will be handled. The Protocol was included in an update containing additional changes to the existing protocols for handling personal injury, low value motor and liability claims.

The Protocol is a substantial document, running in excess of 80 pages. This piece considers the headline elements of the Protocol relating to the initial stages of a claim, such as how the issue of liability is addressed within the Portal.

The remainder of the process will be considered in a further article.

References to Paragraphs below are those contained within the Protocol.

Scope of the Portal

All claims to which the Protocol applies must be submitted via the online portal, located at https://www.officialinjuryclaim.org.uk/claimants.

Those claims to which the Protocol applies are as follows:

  1. the claim arises from a road traffic accident which occurred in England or Wales on or after 31 May 2021;
  2. the claim includes a claim for damages for injury; and
  3. the claimant values the overall claim at no more than £10,000 and the claim for damages for injury at no more than £5,000, save that the value of any non-protocol vehicle costs is excluded for the purposes of valuing the claim in this Protocol.

There are of course exceptions to the above (Paragraph 4.3). Examples include where the claimant is a vulnerable road user, is a child on the date the claim is commenced, or an Untraced Drivers Agreement claim.

Per Paragraph 4.5 to 4.7, claims will also drop out of the OIC Portal on occasion, moving to the existing RTA Protocol or PI Protocol as appropriate. The most obvious are those claims where it is revalued in excess of the upper limits of £5,000 for injury or £10,000 overall. Claims with complex issues of fact or law, or allegations of fraud and fundamental dishonesty should also be removed from the Portal, but the claimant must be provided with reasons (and any specific allegations).

Those claims withdrawn from the OIC Portal will then proceed under the appropriate existing protocol.

Vehicle costs

It has been long been stated in advance of the introduction of the reforms and Protocol that credit claims will be excluded from the operation of the OIC Portal, including credit hire and credit repair.

For the purposes of the Portal, vehicle costs are split into ‘protocol’ and ‘non-protocol’ costs. Protocol costs can be recovered in the OIC Portal, and are those which “have been paid by the claimant personally or by an individual on behalf of the claimant”, or in the case of repair costs “are the subject of an estimate of the costs the claimant (or an individual on their behalf) intends to pay personally”. Any claim for PAV must also be “claimed by the claimant personally and not payable by the claimant to the claimant’s insurers”.

Non-protocol costs are those which would “be payable by the claimant to one or more third party organisations or businesses out of any damages recovered”.

The issue of how non-protocol costs will be progressed will be dealt with in a separate update.

Commencing a claim

Commencing a claim in the OIC Portal does not count as starting court proceedings for the purposes of limitation. Should a claimant be concerned that the three year limitation period may expire before the steps required by the Protocol are completed, they should issue proceedings and then seek a stay from the court to allow the completion of the Protocol process.

On commencing a claim, the claimant (whether unrepresented or represented) must complete a Small Claims Notification Form ("SCNF"). A claim cannot be submitted without all mandatory inputs completed. Claimants should also make ‘reasonable attempts’ to complete those non-mandatory inputs. Claimants can upload photographs, video footage and other evidence in support of their claim at this stage.

In line with the definition of vehicle costs, claimant can provide supporting documents for those damages they have paid for or intend to pay for. They must also state if non-protocol vehicle costs have been incurred, and if so, whether these are being handled by another organisation.

Other protocol damages, such as loss of earnings and prescriptions can also be submitted.

Liability

The completion of a SCNF will generate the appropriate MID search and submission to the appropriate compensator. The claim will be accepted and the compensator must provide a response within 30 days of receipt (or 40 days if the MIB are deemed compensator). If the compensator does not respond in the appropriate timescale, liability is deemed as admitted.

Liability will be handled in one of four options:

  • Admission of liability in full;
  • Admission of liability in part (including percentage for which liability is admitted);
  • Denial of liability (requiring the defendant’s version of events and evidence); or
  • Admission of fault (whether in full or in part) but denying injury to the claimant.

Any liability response not providing a full admission will require the defendant’s version of events to be provided to the claimant.

Where a partial admission is made and the claimant does not agree with the offer of partial liability, the parties (starting with the claimant) can make up to three proposals for an alternative liability split. Each new proposal by a party must comprise a less advantageous offer to that party than made previously.

In the event that liability cannot be agreed between the parties, whether due to a denial of liability or inadequate offer of partial admission, then the claimant may seek a determination of liability from a court. The claimant will complete Court form RTASC L to prompt this action.

The claim in the OIC Portal is effectively placed on hold until such time as this is resolved.

A recent webinar with the OIC Portal team confirmed that in disputes involving Driving Other Cars extensions or indemnity concerns, the compensator identified by the MID search must accept the claim, but then deny liability, explaining their position to the claimant. If the claimant does not agree, then the claim will proceed to a determination of liability hearing.

Injury

During the initial SCNF submission, claimants will be asked to describe their injuries as best they can and state if their circumstances are exceptional or that the injury is particularly severe (per Paragraph 5.12). At that stage, the claimant will also be invited to advise whether they have been advised to seek additional treatment such as rehabilitation. The compensator can then elect to make an offer of assistance at that stage.

The claimant can obtain their first medical report once a partial or full admission is made (or determination of liability in their favour) or whilst fault is not disputed, injury is. A fixed cost medical report can then be obtained by the claimant via the MedCo system.

Our next article will consider the next steps.

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