25 January, 2021
As a Partner in the Large Loss and Complex Claims Department it isn't often that portal claims cross my desk, but I received an instruction last year from an insurer client who had become increasingly frustrated by the lack of progress in a straightforward portal claim.
The incident itself occurred in 2013, but the CNF was not filed until 2016. Limitation inevitably approached relatively quickly, and the Claimant's Solicitors issued Part 8 proceedings with a request for a stay, so that the parties could finalise settlement under the Stage 2 process. All good so far.
Except that, by late 2019, not a single thing had happened. No medical report, no special damages information, not even a reply to emails and letters; just nothing. To make things worse, the same Claimant had another personal injury claim running in tandem which was progressing and in which a psychiatric report dealing with both incidents had been served. For some reason, the Claimant's Solicitor did not serve it in the stale claim and when he did eventually respond to my email, he gave me a generic fob-off by telling me that they had gone back to the expert for clarification. A year prior.
So, we now had a portal, liability-admitted, issued claim with no progress, little or no communication from the Claimant's Solicitor, no explanation for the delays, and no prospect of that ever occurring.
As is common in these cases, the main culprit was the stay order. Unfortunately, courts are fond of staying portal claims with no deadline, presumably on the assumption that the desire for payment of damages and/or costs is incentive enough for cases to avoid stagnation. Not quite so, especially if you have a belligerent Claimant who is generally enjoying the litigious revenge process.
So, what do you do in these circumstances? We have published various case reports and articles dealing with these matters over the years (see Court Strikes out Claim Incubated in the Portal worth £2.6 million 21 Nov 2019 - Article from Forbes Solicitors
and Potential Consequences of Claimant Abuse of the Personal Injury Portal Process 02 Sep 2020 - Article from Forbes Solicitors for instance), but as the satellite litigation has gone somewhat quiet since the spectre of a global pandemic invaded everybody's priorities, this case serves as a timely reminder.
The useful thing about Part 8 issued claims is that they are already before the Court, which means that remedies are available by simple application. In this case, I received no response at all from the Claimant's Solicitor for several months, then an unsatisfactory answer when I threatened an application. As such, I filed an application for an Unless Order, requiring the Claimant to disclose a Stage 2 Settlement Pack within 21 days or have his case struck out. The application was listed for a hearing but, bizarrely, the Claimant's Solicitor did not turn up. Cue wasted costs order number one against the Claimant's Solicitors.
At the eleventh hour before the adjourned hearing the Claimant's Solicitor finally sought to reach agreement with me, which provided a forum to put some real direction in place. After much debate and stamping of feet, the Claimant's Solicitor eventually agreed to a deadline for the stay and Stage 2 Settlement Pack, and to payment of wasted costs order number two.
The case recently settled by negotiation in the portal. After four years of case work (in the loosest sense of the word, admittedly) the Claimant's Solicitors received £900 in portal fees; they paid £4,600 in wasted costs.
Early recourse to experienced Solicitors can often resulting in a very cost-effective solution to deliberate incubation, undervaluing of quantum, deliberate stalling, and other portal tactics and our teams are on hand to deal with all of your "sticky" portal claims.
For more information contact David Mayor. David is a specialist Solicitor in the Large Loss and Complex Claims unit of our Insurance team, and deals with the defence of high-value and complex personal injury cases in the construction sector.
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