Damages Claims Portal Pilot Scheme update

The Damages Claims Portal (DCP) went live on 28 May 2021, however the as yet untested service has received slow take-up, partly we believe due to initial poor publicity surrounding it, and then due to the need for HMCTS to undertake some recently completed technical updates to the system to enable law firms to better interface with the system on initial sign-up. With members of the senior judiciary becoming increasingly concerned at the slow progress however, steps are being taken to mandate the service, with initial claimant process mandated in early April 2022, followed by intentions to mandate the service for defendant users by June 2022.

What types of claim does the DCP cover?

Practice Direction 51ZB sets out the criteria for claims covered by the DCP.  A claim is suitable for the DCP provided all of the following conditions are met:

• The claim is for damages only (rather than any other remedies sought – liability dispute claims are included)
• The claim would not ordinarily follow the Part 8 procedure
• The claim is not made under one of the provisions of the Consumer Credit Act 1974
• The claimant is represented by a legal representative who is registered with MyHMCTS and has access to the DCP
• The claimant is aged 18 years or over, or if under 18 has a litigation friend
• The claimant is not a protected party
• The fee for issuing the claim is paid using the “payment by account” system
• The claim is conducted in English
• The claimant does not have in force against them:

- A civil proceedings order

- An all proceedings order; or

-  A civil restraint order, and

• The claimant believes that the defendant:

- Has a postal address for service within England and Wales

- Is aged 18 years or older; and

- Is not a protected party 

As you will note from the above list – there are in effect not many types of claims that are dealt with by a general and/or motor insurer which would not be captured by the DCP when it comes to proceedings being issued.  There is no financial limit to the value of a claim which can be issued within the DCP.

DCP Timeline

Below we have set out a summary of the extent of the process to date as we understand it, and the anticipated future timeframe for the DCP:

• Went live 28 May 2021
• Currently for cases from issue of claim form until directions questionnaires (after which cases fall out of DCP and continue to be dealt with in the usual way)
• The claim journey will continue to be developed within the DCP by HMCTS – so that eventually a claim can progress through the DCP from pre-litigation to enforcement. Each developed stage will be rolled out as it is completed
• API will be developed though there is no current timeframe for this
• Is for the majority of cases usually issued by way of Part 7, including liability dispute claims (some exclusions including claims for a specified debt, where defendant is outside the jurisdiction and Part 8 claims)
• Can accommodate multi-party claims (1v2 and 2v1)
• Just for law firms for now – insurers cannot use direct at this stage but will be able to in the future
• The online issuing service set up during Covid-19 has been discontinued, so that if a claimant’s solicitor wishes to issue proceedings online, they must do so via the DCP
• If the defendant’s legal representative is registered with MyHMCTS, and the claimant’s solicitor wishes to serve against them within the DCP, the claimant solicitor must currently obtain express agreement from the defendant solicitor that they are authorised to accept notifications on behalf of the defendant (including notification of the Claim Form) through the DCP – if they do not agree to this then the claimant solicitor can still issue within the DCP but the case then proceeds offline and continues along the usual route (so in effect the DCP then becomes an online issuing service in such claims)
• On 4 April 2022 the service will become mandatory for claimant users, who will need to issue all claims within the DCP provided they meet the criteria set out in Practice Direction 51ZB
• HMCTS are working towards mandating the defendant process by June 2022 – with a Rule change necessary which will require defendants to respond to claims within the DCP provided they are issued in the DCP (therefore at this point the claimant will not need to seek agreement from the defendant solicitor to serve via the DCP – they will merely need to issue via the DCP)
• If an insurer has not nominated a solicitor to accept service, the case will fall out of the DCP after issue

What is Keoghs doing to prepare for this change?

Keoghs has registered with MyHMCTS and are looking to identify a selection of cases to test through the DCP (relatively straightforward, fast-track cases, preferably motor claims initially unless other suitable cases are identified).

Our Operations and File Opening Teams are working to understand the practicalities of the new process, and trying to identify suitable test cases.  

We have made sure our case handlers and file handling staff are aware of the DCP and know what to do when approached by a claimant solicitor about taking a claim through the process before it becomes mandatory.

There are some cases when we are acting for the claimant in a claim, such as recoveries cases. We are making sure that our case handlers who deal with cases on behalf of claimants are aware of the date for mandating the claimant process, and understand the criteria for claims which should be issued within the DCP.

What can you do to help prepare for this change?

At Keoghs we would like to test some cases through the DCP as soon as possible - by doing so we will be able to provide meaningful feedback to HMCTS which will enable them to make any necessary system changes as soon as possible and before a volume of claims enters the DCP.

You can assist us by making your claims handlers aware of the DCP and the above timeline, so that if a claimant solicitor asks them about it they are in a position to have the necessary conversations.

Your claims handlers will also need to be aware of the dates by which the DCP will become mandatory – we will provide you with an update as soon as we are aware of the date for mandation of the defendant part of the process. 

What do I do if a claimant solicitor asks me to nominate a solicitor to pursue a claim through the DCP before the defendant process is mandated?

You are likely to be approached on an increasingly regular basis by claimant solicitors asking which solicitors are nominated to accept service of proceedings, and if they are nominated to accept proceedings through the DCP.

When this happens it is important that you contact your nominated solicitor as soon as possible to let them know and at the current time, have a conversation about the basic facts of the case, in order to help agree if the claim is suitable to serve/pilot within the DCP (Keoghs criteria - is it a relatively straightforward, fast-track case, preferably a motor claim though other types of case may be considered for pilot testing).

If you and your nominated solicitor both feel the case is suitable to serve/pilot through the DCP you will then need to let the claimant solicitor know who is instructed, and that they are instructed to accept service through the DCP (or not if that is the case).

If Keoghs is instructed we will set up the case, and allocate a file reference which we will provide to the claimant’s solicitor, along with an email address for service.  The claimant solicitor will still need to contact us direct, and receive our express permission to serve within the DCP. This will change at a date to be confirmed (we anticipate by June 2022) when the claimant will not need permission to issue and serve within the DCP.

What if I want to handle the claim in-house – and I don’t instruct a solicitor to accept service of proceedings?  Or I don’t know who I want to instruct until after proceedings are served?

In those circumstances you would request the claimant solicitor to serve proceedings against the insurer firm or directly against the defendant, and the case would be issued within the DCP, but then immediately fall out of the DCP to be served ‘the usual way’.  At this time the DCP is only for legal representatives, not for insurers or other entities.  You can still then choose to instruct a solicitor to take over the handling of a case after service, but it will then stay out of the DCP and cannot re-enter the DCP after service.

Please contact Natalie Larnder with any questions on the operation of the DCP.