Matthew Ford, Head of Travel at BLM and Richard Collier, Junior Travel Barrister at 1 Chancery Lane, share their thoughts on the management of portal claims in the light of COVID-19.
We’ve seen that the pre-action protocol has been amended to allow parties more flexibility to comply with court timetables, but what about other important deadlines that could be impacted by COVID-19? For example, low value RTAs and EL/PL ‘Portal’ claims, are subject to tightly prescribed deadlines, and the costs consequences of missing them can be significant.
Firstly, defendants have only one working day to acknowledge the initial Claim Notification Form. This can be difficult at the best of times, let alone where defendants may be experiencing absence due to the virus, or difficulties with remote access. Secondly, the 15 working days in RTA claims or 30/40 working days in EL/PL claims, in which to admit liability is going to be very challenging. Defendants rely on their staff ‘on the ground’ to gather the evidence which enables them to assess liability prospects. Most industry sectors, but specifically retail, travel and leisure businesses are not able to be open because of the Government’s advice. With accident documentation, risk assessments, inspection records and similar, securely locked away in closed stores, bars and travel agencies (etc) and staff being furloughed, how can a considered position be reached on liability within these short time frames?
For those businesses that have remained open there is the added challenge of their staff having to work in a very different way to normal, in the case of home working, or, as with food retailers in particular, the added pressures of having to concentrate on maintaining an increased supply of goods whilst ensuring that vulnerable customers are accommodated, moving priority away from gathering documentation in response to claims. Added to this is the reduction in workforce due to illness and self-isolation.
If liability is denied or the deadlines are not complied with, the case leaves the Portal and enters the normal Part 7 process. The relatively modest Portal costs are lost and Fixed Recoverable Costs become payable. For a £5,000 EL / PL claim which settles pre litigation but after the case has exited the portal, rather than paying £900 for base costs, the defendant would end up paying almost double that at £1825. The difference is even more stark the higher the damages.
Unnecessarily exiting the portal could be frustrating for claimants too. As well as being cheaper, using the Portal is [usually] quicker and claimants are likely to want their money as swiftly as possible in the current circumstances. It would be easy for defendants to assume that claimant solicitors would benefit from more claims dropping out of the Portal. However, even though they can claim higher costs, it will take longer to recover them, which won’t help with cash flow.
So what should defendants do if they can’t carry out a full investigation?
There are really only two options:
- Either concede liability without carrying out a full investigation, or
- Allow the claim to exit the portal and accept that fixed recoverable costs will apply.
We couldn’t ever recommend admitting liability without knowing all of your options. Even if the claimant can prove breach of duty, there may be contributory negligence which is sufficiently significant to offset the imposition of Fixed Recoverable Costs. In specific cases there may be reasons to concede liability in the Portal, even if you have a defence on liability, but deploying ‘admission’ as a blanket strategy is likely to cause problems further down the line (such as by encouraging further claims because you’re seen as a ‘soft touch’ or solicitors intentionally putting potentially higher value claims through the portal to get an early admission
We suggest that you write to the claimant’s solicitor as you approach the Portal deadline, to say that you haven’t been able to carry out an investigation within the timescales because of COVID-19. You will resume the investigation when the Government lifts the lockdown, but in the meantime you expect the claimant to work within the spirit of protocol and not to exit the claim from the Portal.
Many claimant solicitors are likely to be reasonable, because this is a global pandemic which affects all of us and – as claims professionals – we should be working together through this difficult time. We all recognise that seeking to profit from the misfortune of others is not acceptable.
If claimant solicitors are not reasonable, can we argue that the fixed costs should be restricted to Portal costs, given that the non-compliance was demonstrably outside the defendant’s control? As it stands, the authors do not think so. The rules are clear, and we can’t envisage claimants accepting this as a condition of settlement, or courts making this determination. Realistically it would require a rule change of the kind we saw last week under the new Practice Direction 51ZA (allowing for parties to agree extensions up to 56 days). Similarly, as we reported last week, there has been a voluntary extension to the Personal Injury Pre-Action Protocol entered into by the Association of British Insurers and a number of high profile solicitors representing claimants.
In conclusion, unless and until there is a rule change the authors consider that all parties are stuck with the Portal rules as they currently stand. It would be an opportune moment to publicise this injustice and to seek to bring it to the attention of the Civil Procedure Rules Committee and/or the Bar Council and/or the Ministry of Justice. Sharing this article might be a good start….
About the authors
Richard Collier was called to the Bar in 2016. Before that, he had worked as a Judicial Assistant to Lord Justice Jackson in the Court of Appeal. In the short time he has been practising he has accumulated a wealth of experience in personal injury claims generally, with a particular emphasis on cross border and other travel related disputes.
Matthew Ford has led BLM’s travel team, which consists of over 30 lawyers across 6 offices, since 2006.
BLM advises numerous leading tour operators, insurers and brokers on various travel issues, including claims, regulatory and risk management solutions.