Keoghs Insight

Author

Shelley Hawker

Through the Portal

AWARE13/03/2015
Disease Aware Issue 6

As so few cases make it past Stage One of the portal process, there has not been much need to consider the workings and technicalities of the later stages of the process.

Where an admission is made at Stage One, concerns may still arise following receipt of the Settlement Pack and consideration of the claimant’s medical evidence. An insurer may want to exit the claim at Stage Two, so careful consideration of the status of the admission is required.

An admission for the purposes of this Protocol is defined at paragraph 1.1(1):

(1) ‘admission of liability’ means the defendant admits that:

  • the breach of duty occurred
  • the defendant thereby caused some loss to the claimant, the nature and extent of which is not admitted; and
  • the defendant has no accrued defence to the claim under the Limitation Act 1980.

Medical evidence disclosed at Stage Two may suggest a potential defence on the grounds of causation or limitation which had not been apparent from the Claims Notification Form (CNF). It is then possible to exit the claim at this point. The claim will continue under the Disease and Illness Protocol.

The relevant wording of the Pre-action Protocol for Low Value Claims is quite precise:

7.36 The claim will no longer continue under this Protocol where the defendant gives notice to the claimant within the initial consideration period (or any extension agreed under paragraph 7.33) that the defendant:

  • considers that, if proceedings were started, the small claims track would be the normal track for that claim; or
  • withdraws the admission of causation as defined in paragraph 1.1(1)(b).

So by exiting the claim at Stage Two a defendant is only withdrawing the admission of causation. Even that is subject to the insurer taking that action within the initial consultation period - 15 days from the date of receipt of the settlement pack.

If the admission of causation is not withdrawn within this time, it can only later be withdrawn with the consent of all parties or with the court’s permission.

Admissions relating to breach of duty and limitation are not withdrawn if the claim is exited within the initial consultation period. Withdrawing from those admissions is covered by CPR 14.1B.

CPR 14.1B (3) The defendant may, by giving notice in writing, withdraw any other pre-action admission after commencement of proceedings:

  • if all the parties to the proceedings consent; or
  • with the permission of the court.

(4) An application under rule 14.1B(2)(b)(ii) or (3)(b) to withdraw a pre-action admission must be made in accordance with Part 23.

When a claim is exited at Stage Two an astute claimant would look to issue Part 7 proceedings quickly and rely on the pre-action admission. The defendant would then have to apply to withdraw the admission.

This highlights the need to consider carefully before admitting at Stage One. This further highlights that this Protocol does not work for industrial disease cases as the CNF gives such limited information that it is impossible to give proper consideration of the issues of causation and limitation in absence of the medical evidence at the point in time when the admission is required.

A defendant should try to closely question the claimant during the 30 day investigation period. If he fails to provide the information requested, the claim can be exited at Stage One or taken to Stage Two - with a stronger argument that any later withdrawal is the claimant’s fault.

There is no doubt that the portal is badly suited to disease claims. Efforts continue to reform the process. Until then, it is important to understand the procedural rules and use them to the defendants’ advantage.