Damages Claims Portal Pilot Scheme update 4

With confirmation that the updated Practice Direction, mandating service on defendant representative legal users, will come into effect on 2 June 2022 – and with various system updates having been completed yesterday, we cover below what the current technical issues are, potential risks to insurer client organisations and what we are doing at Keoghs to ensure that we are as prepared for the impending change as is possible.

Technical issues, limitations of the service and risk areas

Inability to allocate file handlers

The most pressing of technical issues currently being experienced is the fact that updates made to the DCP yesterday, have had the effect of knocking out one of the two platforms the system utilises. As a result we are unable to allocate any cases to file handlers. In short the system remains in full failure (which has been the case for the last two weeks, albeit for different reasons). We have an agreement in place with HMCTS that we will send them daily screenshots of all the cases served against us, and they will drop these out of the DCP and into the original heritage system.

We understand that this current issue is not one that we alone are experiencing, and is being encountered by other defendant law firms that we are in contact with. HMCTS are aware of this issue and are looking into it as a matter of urgency. There is no known date for resolution of this issue and we believe that any cases issued after the date for mandatory service on 2 June will continue to be taken out of the DCP and moved to the heritage site.

This is the area where we consider there is most risk to clients as the date for mandating the defendant process quickly approaches. While HMCTS are moving cases out of the DCP at present, with an increased volume of claims being served in the DCP from 2 June, there is a risk that they will not have capacity to do this as quickly (there is no separate technical support team at HMCTS) as necessary which may result in default judgments being obtained against insureds. This will have credit implications for insureds and while it is possible to make applications to set these aside there will be knock-on impacts on time taken for file handlers to rectify issues and cost implications.

Sign-in delays

While we are still experiencing some delays signing into the DCP and often require more than one verification code to do so, there has been significant improvement to the time taken to sign-in to the DCP.

Case details not visible until claim assigned to a user

The defendant reference/client name/client ref/claimant name is not visible on the case list, however some improvement has been seen here in that additional references are now included in the service email. We hope for additional improvement in the future.

100 case restriction

There is still a cap of 100 new cases that can be seen at any time. This means we don’t have sight of exactly how many cases are issued each day, however we are able to see all cases, once we clear others by allocating them to a user (something which we are unable to do at the present time – see above).

Directions Questionnaires required to be filed with defence

Unlike the existing Practice Directions within the heritage system, the DCP requires users to file a Directions Questionnaire at the same time as filing a defence. This is likely to be an issue with more complex and higher value county court claims, where we are unlikely to know what experts we may want and which witnesses we will be calling when filing a Defence. There is no intention for this to be altered according to HMCTS, and is very much a feature of the DCP. The likelihood is that a minimally completed Directions Questionnaire will need to be filed with more complex claims, with a more detailed questionnaire filed at a later date.

Updated Practice Direction

The exact wording of the updated Practice Direction has yet to be received. Until we have seen it we cannot be sure that insurers who have their own in-house legal departments with SRA registration numbers won’t be required to register with the DCP, however we are led to believe that this will be the case. We will provide an update on this point when the wording of the updated Practice Direction is released.

A snap-shot of the updated Practise Direction has been released and from this we understand:

• Claimants need to give at least 14-days’ notice that they will be issuing proceedings within the DCP; and
• Claimant’s solicitors need acknowledgment from defendant representatives that they are instructed (see below action we are taking in this respect)

What claims are not included/suitable for the DCP:

• Cases which are to be issued by way of Part 8
• OIC Portal cases
• High Court cases
• Claims with indemnity issues
• Fraud and fundamental dishonesty claims
• The defendant is under the age of 18
• The claimant and/or defendant is a protected party
• The claim is not for damages only (other remedies sought)
• The claim is made under the provisions of the Consumer Credit Act 1974
• The claim is not conducted in English
• The defendant does not have a postal address in England and Wales
• The defendant is the Crown
• The claimant has in force against them:

o   A civil proceedings order

o   An all proceedings order; or

o   A civil restraint order

Small claims and claims for specified damages are a grey area which we originally thought were not included in the DCP but do seem to be – we are awaiting clarification of the same.

What are Keoghs doing now to prepare for the next phase of the DCP roll-out?

• We have been testing a selection of claims and have rolled out a continuing training program to all staff
• We have five super users signed up to the DCP, so that all cases served in the DCP are notified to super users in addition to the email address where they are served – ensuring that we are unlikely to miss cases served
• We have a representative on the FOIL DCP group, and are in daily contact with FOIL to coordinate technical issues across firms and with HMCTS
• We are in daily contact with HMCTS to communicate technical issues being experienced, in order that they can work on fixes as soon as possible
• We are writing to claimant law firms informing them that where clients nominate us in a case, they can take that to mean that we will accept service via the DCP (except for cases where there are indemnity issues, fraud and fundamental dishonesty investigations) so that claimant solicitors do not have to write again for confirmation from clients and Keoghs
• We are using the DCP to issue claims (such as recoveries cases) and ensuring file handlers issuing claims has received updated training as the court rules change

What can our clients do now to ensure a smooth transition?

• Make sure your claims handlers are aware of the DCP and date for mandating the defendant process of 2 June 2022
• Ensure you nominate solicitors as soon as possible – please use the email addresses nominations@keoghs.co.uk and newinstructions@keoghs.co.uk when nominating us (unless you have expressly agreed other email addresses with your Client Account Manager)
• Ensure all staff are aware that for cases where there are indemnity issues, or suspicions of fraud and fundamental dishonesty, these are not appropriate for the DCP. In these cases when nominating a solicitor, please ensure claimant solicitors are made aware that due to these issues the case is not suitable for the DCP and as such should not be served within it
• Please ensure you provide us with the claimants date of birth for recoveries or other claimant cases to be issued in the DCP
• You may wish to inform your larger insureds and fleet insureds of the DCP and some of the risks it may pose

For more info please contact Natalie Larnder