AWARE

Keoghs Insight

Author

Peter Kenworthy

Peter Kenworthy

Partner

T:01204 678616

Disease claims & the portal

AWARE18/02/2014
Disease Aware Issue 4

After three years of the low value RTA protocol and portal the MOJ extended the protocol, and the portal process, to low value EL/PL claims occurring after 31 July 2013; and EL disease claims with first notification after the same date. The benefits of the low value protocol and portal were seen as streamlined justice at much reduced cost in straightforward claims. It is clear from the outset of the EL/PL protocol that disease claims were not a priority.

The portal process has not been made to fit disease cases - particularly given its exclusion of multi defendant cases. It is no use in defendants complaining about the application of an RTA protocol to EL disease claims. We are where we are. We need to look at how the new system can be made to work. The potential savings to insurers from the fixed costs regime are significant - especially when set against the huge increase in volume of NIHL claims.

One of the drivers of NIHL claims has been a reallocation of resource by the claimant market into the more profitable disease arena - precisely a reaction to the RTA process. Claimant representatives will do what they can to avoid the pressures of the portal’s fixed fee regime in disease claims.

The portal’s fixed fee regime is clearly attractive to insurers. The fees offered in the current portal process will see claims up to a value of £10,000 recover a basic fee of £9000 - as against several thousands pounds for claims outside the portal.

We have already seen efforts by some claimant firms to avoid the portal process. Some claims identify two defendants at an early stage - only for one of them to be dropped later.

One firm argues that NIHL claims are complex and should not go through the fixed fee portal regime at all. This is clearly wrong. Claimant solicitors should afford defendants the opportunity to consider the claim on receipt of a Claims Notification Form (CNF). What is ‘complex’ about a CNF describing the circumstances of the alleged exposure, followed by a (standard form) medical report?

There is no case law providing guidance on the EL portal process. We can refer back to the RTA portal to see where courts may stand on some of the likely issues but even that case law is limited and restricted to first instance decisions. The issue of complexity was considered in Dickinson v Langford - where a disputed care claim was not enough to render a case ‘complex’.

Where a claim exits the portal due to insufficient information on the CNF there should be costs consequences for the claimant. In Monteith v Carol the court ordered the claimant to pay the defendant’s costs of defending any subsequent Part 7 proceedings.

Where deliberate misconduct is suspected, the court might go further still. In Qaiyum v Ocado, the claimant paid costs on an indemnity basis after the court concluded that there had been a deliberate attempt to avoid the portal and protocol.

The benefit of fixed fees can come at a price for insurers. Portal disease numbers are starting to pick up. One of the biggest areas of concern is the inadequate evidence in the CNF and the tight timetable for defendants to consider breach of duty and cover.

There is currently no facility for defendants to consider limitation properly. There is no mechanism for questions or clarification of the claimant’s medical evidence. We secure over 70% repudiation rates on NIHL for our clients. Can the new process match those repudiation rates while still delivering costs savings on paid claims?

If the claimant provides sufficient information in the CNF, admission or denial of breach can be secured relatively quickly. This demands co-ordination and co-operation between insurer, insured, broker and co-insurers. That is perhaps not always achievable now. This is an issue potentially within defendants’ and insurers’ own gift and can be addressed outside of the portal process - e.g by a claims hub or increased delegated authority of co-ordinating insurers.

Defendants regularly see unsatisfactory medical reports. The portal gives limited opportunity to consider causation and diagnosis or question the medical evidence. The key is the provision of a report from an expert trusted by both parties. There has been some discussion as to whiplash style accreditation. That is a bigger piece of work, difficult to deliver and unlikely to be imminent. Keoghs liaises between its insurer clients and some of the major claimant firms to agree that reports from specific experts in an agreed format will normally be acceptable.

There is always an inherent tension between a streamlined process and the ability to challenge a claimant’s case. Defendants need to strike the right balance between the benefits of a much-reduced costs burden and the increased cost of settling unmeritorious claims. This is well trodden ground for Keoghs. The right advice to our insurer clients reflects the commercial realities as well as the legal technicalities.

The new system is far from perfect for disease claims. It has its detractors but it is no use simply pointing to the obvious flaws. There are significant and achievable benefits to be secured. Some of that will come from adroit and well informed claims handling. Some will rely on insurers reforming their own processes - especially in long tail single tortfeasor claims.

Co-ordination between insurers can be slick enough to allow the turnaround of claims within the prescribed timetable. Efforts to empower co-ordinating lead insurers should be encouraged. These efforts should be accompanied by the right legal challenges on the right cases to discourage unhelpful claimant behaviours.

The ultimate aim would be the extension of a properly reformed low value protocol to multi defendant disease claims. The benefits of an extension of a fixed fee regime to the majority of NIHL claims could be huge, provided the right system of work is adopted. All of us on the defendant side must consider what such a process should look like and work towards it. The application of the low value protocol to EL disease claims may well be forcing a square peg into a round hole, but the right amount of hammering can still make it fit.