Sunday, 3 March 2013

The Final, final Countdown (for now!)

Disclaimer – the following are merely notes to help practitioners based on the latest information about the Jackson/LASPO civil litigation reforms, particularly as they apply to personal injury law. Whilst every effort is made to be accurate, the Ministry of Justice is prone to continually change things.  The rules and protocols are already subject to further amendment and may change prior to the dates that are listed. These notes do not constitute legal advice and you should always seek advice from a solicitor (before their eventual and forthcoming extinction). Any corrections for inaccuracies gladly welcome. Further regulations are due to be published by the Ministry of Justice about the implementation of the reforms and the following is a guide only to help prepare for the changes ahead.

Gentle reader – a short summary of notes on the implementation of the civil litigation reforms:


From this date forth no recoverability of success fees or ATEI premiums from the Defendant for cases where client signs CFA entered into on or after 1.4.2013

QOCS comes into effect. It does not include cases where a success fee or ATEI premium is claimed from the Defendant (ie. a CFA prior to 1.4.2013).  Part 36 trumps QOCS.

Damage Based Agreements (DBAs) are allowed. These are unlikely to be useful in PI claims at present pending possible increase of the small claims PI limit to £5,000 or more.

10% increase in general damages commences for cases where claimant has a CFA without a success fee claimed against the defendant. (Generally this will mean cases where CFA is entered into on or after  1.4.2013)

Ban on referral fees commences.


Reduced fees of £500 for RTA cases less than £10,000 begins (along with new portal rules) starts.   

The reduced fees for RTAs less than £10,000 apply to all cases that are entered onto the portal on or after 30.4.2013 regardless of the date of the accident (this effect is known as the “portal portcullis” and is  retrospective).

It is important to note that RTA cases over £10,000 are still outside the portal regardless of when they occur as long as the accident occurs before 31.7.2013.


RTA portal extended to £25,000, but only for RTAs occurring on or after 31.7.2013.  

RTA cases over £10,000 but less than £25,000 where the accident occurs prior to 31.7.2013 are not on the portal at any stage. 

Portal extended to include PL and EL claims where the date of accident is on or after 31.7.2013.

The use of the portal for EL claims will involve the use of the Employers Liability Tracing Office (ELTO) as if the insurer is not known, a search has to be undertaken through the ELTO to track them down.

It is not clear at this stage whether the extension of the portal at this date will be able to use the online portal or not when it starts on 31.7.2013. If not, it would be a “paper portal” where the CNFs are sent out in  the post.  Indeed the use of a "paper portal" may be quite common in EL/PL claims where the insurer cannot be initially identified.

From this date the Fixed Recoverable Costs (FRC) apply to all such cases that fall outside the portal that are RTAs or EL/PL claims where the date of the accident was on or after 31.7.2013.

The Fixed Recoverable Costs are calculated in accordance with the MOJ's table and includes all such cases up to and including trial - issuing proceedings does not get you out of the FRC.

Some further general points:

  • In cases on the portal, both RTA and EL/PL, that are over £10,000 the protocol states it maybe reasonable to obtain an advice from a barrister on quantum.  Normally though the claimant’s lawyer is expected to be able to value the claim. 
  • Also, on all cases on the portal that are under £10,000 it is not expected that the medical expert will need to see the claimant’s medical notes.
  • Where references are made to the value of a claim this is on a full liability basis – before any reduction is made for contributory negligence.
  • In cases over £10,000 on the portal more than one interim payment can be requested.
  • In both protocols, if the limitation period is approaching and compliance with the portal procedure is not possible as a result, the Claimant may issue a claim at the County Court to prevent the case being statute barred.
  • If this is done, the proceedings have to be under Part 8.  The Claimant has to apply for a stay in the proceedings so that the parties can comply with the portal procedure. If the case cannot be settled by the end of Stage 2, the Claimant must apply to have the stay lifted and for directions with a view to the case proceeding to Stage 3.
  • A public liability (PL) claim is defined as any common law or statutory claim against the Defendant that does not arise out of the Claimant being the Defendant's employee – a rather comprehensive definition!  Clinical negligence and RTA claims are specifically excluded.
  •  A new piece in the plan to increase the small claims PI limit is the increase allowed for expert fees on the small claims track from £200 to £750 making it feasible for the first time to instruct a proper medical expert with a small claims matter.  This is in the new Practice Direction that accompanies the amendment of the CPR.

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