Keoghs Insight

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Litigation article and the MoJ Portal

AWARE05/07/2019
PI Aware - July 2019

So what is limitation? 

It is a principle of English law established as far back as the 17th Century that there is a finite period in which legal actions can be started.

The current limitation periods are set out in the Limitation Act 1980.  For personal injury the limitation period is three years although there are some exceptions in relation to children and people with a disability.

But why?

Limitation laws provide a defence against old claims and give certainty in relation to legal liability for past events.  Fundamentally this is a matter of public policy.

First the aim of the statutes of limitation is to prevent citizens from being oppressed by stale claims, to protect settled interests from being disturbed, to bring certainty and finality to disputes and so on.”  NatWest v Ashe [2008] EWCA Civ 55.

Pre-Action Protocol 5.7 for Low Value Personal Injury Claims in Road Traffic Accidents

Where compliance with Protocol 5.7 is not possible before the expiry of the limitation period, the claimant may start proceedings and apply to the court for an order to stay (i.e. suspend) the proceedings while the parties take steps to follow this Protocol.  Where proceedings are started in a case to which this paragraph applies, the claimant should use the procedure set out under Part 8 in accordance with Practice Direction 8B (“the Stage 3 procedure”).

The length of the stay is not set out in the Protocol but our experience is that they will be for a minimum of 12 months and in the majority of cases the stay will be indefinite.

Practice Direction 8B sets out the procedural steps the claimant must take in order to obtain the stay and also provides that when the claimant wishes to start the Stage 3 Procedure or start proceedings under Part 7, the claimant must make an application to the court to lift the stay and request directions (Practice Direction 8B 16.5 & 16.7). 

There is no equivalent provision allowing the defendant to make an application in the same terms.

So why are Portal claims a special case when it comes to limitation?

The Pre-Action Protocol (PAP) is designed to avoid litigation and reduce legal fees.  The overriding objective ensures that civil proceedings are ‘dealt with expeditiously’ for ‘just and proportionate costs’, ‘saving expense’ and ‘allotting an appropriate share of the Court’s resources’.

Rather than ensuring the strict application of the Limitation Act 1980, it would seem therefore that the authors of the Protocol saw a greater public policy benefit in ensuring that;

  • All cases have a chance to settle within the portal;
  • Defendants can benefit from the fixed portal costs; and
  • No advantage is gained by a claimant or their solicitors who have left it until the last minute to make a claim

The procedure works well in situations where both parties are committed to dealing with the claim within the Protocol to conclusion.  Indeed our experience is that 70% of claims stayed under the rule in 5.7 will go on to settle either at Stage 2 or Stage 3.

However in an example of the law of unintended consequences what it has also done is create a place where potential large losses can hide in plain sight and provided a ‘get out of jail’ card for solicitors who have failed to prepare their client’s case in a timely manner.

Is this Abuse of Process?

Our view is that it certainly can be if compliance with the Pre-Action Protocol (PAP) was possible.  The authors of the PAP could not have intended this provision to assist solicitors who have failed to prepare their client’s cases having had sufficient time to do so.

If a matter was proceeding under the Civil Procedure Rules (CPR) the claimant could seek an extension of time for service under CPR 7.6 but it is well-established that such an extension would only be granted where it is genuinely impossible for the claimant to serve.

And whilst there is nothing in the rules that expressly states that the claimant can’t leave it until the last minute to submit a claim notification form (CNF) this would be contrary to the overriding objective and the spirit of the Protocol allowing poor, or in some scenarios potentially underhand, conduct to be rewarded.

It is also worth noting that Protocol 16.7 gives no specific time limit in which the claimant must make their application. 

Not all cases of failing to apply to lift the stay will be an abuse of process.  The decision will depend on the facts of the individual case but it is likely that any delay must be significant.  This certainly mirrors our experience which is that any application by the defendant to lift the stay within six months is unlikely to be successful.

There is also a body of case law following on from Lyle v Allianz Insurance Plc (Liverpool CC 21st December 2017) which holds that it is incumbent on the claimant to review the potential value of the claim on a regular basis and to give notice when it appears the value will exceed the Portal limit.  The failure to give such notice can amount to an abuse of the process where the Defendant is deprived of a potential defence, their ability to obtain meaningful medical evidence is prejudiced or the court is prevented from carrying out case management of the claim.  To make matters worse if the medical evidence recommends rehab treatment the claimant’s condition can actually be exacerbated.

What is the impact of the stay?

“A stay operates to ‘halt’ or ‘freeze’ the proceedings. In general terms, no steps in the action, by either side, are required or permitted during the period of the stay.  When the stay is lifted, or the stay expires, the position of the parties should be the same as it was at the moment that the stay was imposed. The parties (and the court) pick up where they left off at the time of the imposition of the stay.”  Lord Justice Coulson Grant v Dawn Meats [2018] EWCA Civ 2212

Following this judgment it is clear there is no requirement to serve the claim form within four months of issue in accordance with CPR 7.6 and as a consequence no requirement to file particulars of claim.  Accordingly, potentially, the defendant can be left in the dark as to the nature of the claim they are facing for years after the expiry of limitation.

This issue does extend the life cycle of claims and will undoubtedly lead to insurers holding reserves for longer, leading to an increase in insurance premiums – a negative result for consumers and in direct conflict with the Government’s stated aim of seeing motor insurance premiums reduce.

So what can be done?

There is a risk to claimants in issuing proceedings and then doing nothing and an opportunity for insurers to seek appropriate remedies when there has been a potential abuse of the Practice Direction 8B process.

In Lyle v Allianz Insurance Plc, an appeal in Liverpool County Court, His Honour Judge Pearce refused to lift a stay where the claim had been issued under Part 8 and stayed for nearly three years.  The claimant failing to apply to lift the stay for two years following receipt of further medical evidence and a diagnosis of fibromyalgia from a rheumatologist, at which point it would have been clear to a reasonable claimant that the claim exceeded the relevant Protocol limit (£10,000 in this case). 

The Judge agreed that the prejudice to the defendant was obvious. He noted that ‘the state of affairs offends against every aspect of the Civil Procedure Rules (CPR) and the overriding objective.’

It is unlikely that a delay by itself, unless significant, will be sufficient to be considered an abuse of process.  In considering whether an application is appropriate the following will be considered:

  • Have updates been requested from the claimant, and what has been the response?
  • Has there been an indication that the claimant may remove the claim from the process but they have not done so?
  • Have the claimant’s injuries been aggravated by the delays?
  • Has there been a breach of the PI Protocol?
    • Has the claimant continued to obtain medical evidence after the value of the claim can reasonably be seen to exceed the applicable Portal limit?
    • Has the claimant held back medical reports which have clearly been on file for a considerable period in breach of Paragraph 8.1.1(a) of the PAP?
    • Has a meaningful schedule of loss, even if provisional, been served in accordance with Paragraph 8.1.1(b)?

Insurers with clearly defined processes for identifying and managing cases which have not progressed to Stage 2 within usual timescales will be in the best position possible to manage stayed claims and minimise the risk of being ambushed by a large claim, but frankly the rules don’t help them in this endeavour.

Insurers should seek updates regularly, asking for:

  • The claimant’s position on rehabilitation and interim payments
  • When the last review of the value of the claim had been carried out
  • Confirmation that the latest estimate of quantum is under £25,000
  • A full list of medical reports obtained and those intended to be obtained (with timescales)
  • Clarification of any pecuniary losses and draft schedules of loss

Then the cases should be assessed in light of the above. 

  • Are there any other causes for concern e.g. ongoing CRU benefits or Intel?
  • Put the claimant on notice prior to the expiry of the limitation process that if a Stage 2 settlement pack is not received within six months of limitation then an application will be made to have the stay lifted.

Conclusion

It was never the intention of the procedure within Practice Direction 8B to circumvent inactivity or allow a claimant to build a multi-track case outside the scrutiny of the Court’s case management powers – nevertheless, that has been the result.

In the absence of procedural rule changes, there is now a sufficient body of case law to demonstrate that where it can be shown that the claimant is seeking to gain a potential unfair advantage by invoking the procedure, and where the claimant’s persistent failures and delay increases expense and prejudice to the defendant, then there is reason to be optimistic that the Courts will take action – the highlighted case is an example of just that.

 Highlighted case