A Summary of the new Pre Action Protocol for Personal Injury Claims below the Small claims Limit in Road Traffic Accidents

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Article

26 April, 2021

Aka Whiplash Reforms or RTA Small Claims Protocol

Financial Limits

For road traffic collisions occurring on or after the 31 May 2021 a new protocol and new small claims limit for injury of £5000 will apply. There is a total limit of £10,000 applicable for each claim.

Damages Excluded

Non-protocol vehicle costs such as credit hire and credit repair credit storage and subrogated losses are excluded. In short, any monies owed to a business or organisation. Protocol vehicle costs are those which the Claimant has incurred or the cost of which he owes to another individual.

It is unclear but probable that credit physiotherapy, repayable sick pay and care claims will fall within this protocol.

This Protocol does not apply:-

  1. Where the injury arises other than from a collision. i.e. a pothole
  2. Where a vulnerable user is involved. i.e. motor cycle rider or pillion passenger or sidecar user, pedal cyclists, horse riders, pedestrians or users of mobility scooters.
  3. Where the Claimant is a child
  4. Any application to the MIB (i.e. where potential Defendant is uninsure
  5. Where the Health & Safety at Work Act may apply
  6. Where the Claimant is the representative of a deceased person
  7. Where the Claimant or Defendant is a protected party
  8. Where the Claimant is bankrupt
  9. Foreign registered vehicles

Liability Process

The Claimant will upload documents to the portal. The Compensator then has 30 days to respond. The Compensator has four choices:-

  1. To admit liability in full
  2. To admit liability in part
  3. To deny liability
  4. To admit liability but dispute causation

N.B No response will automatically mean that liability is admitted.

If liability is denied the Claimant will commence proceedings for a liability decision under the rules set out in practice Direction 27B. If the decision is in favour of the Claimant, then the matter comes back to the portal for quantum to be decided.

Damages

The Claimant will arrange a medical examination through the portal. There is a tariff for damages which is shown in Appendix A.

On receipt of the medical report the Compensator has 20 days to make an offer. If no offer is made, then the Claimant may commence proceedings. Once an offer is accepted the Compensator has 10 days to make payment.

Should proceedings be issued then the non-protocol vehicle damages must be added. The Compensator has 15 days to respond to that document.

There is a facility by which damages can be increased by up to 20% in exceptional circumstances. What those circumstances are is not defined and will be solely at the discretion of the Court.

Offers are limited to three each side.

Court Pack

The Court Pack will be on screen but has not yet been finalised. The Claimant sends his Court Pack to the Compensator at least five days before commencing the action. The Compensator can add documents to the list but not deduct any. The revised list of documents is sent to the Claimant and must be used. If the Acknowledgement of Service is not sent in time the Defendant is not permitted to rely on any of their documents but may attend a Hearing. If they do so they cannot be heard without making an Application.

Court Costs

All actions under the RTA Small Claims Protocol are deemed allocated to the Small Claims Track and such costs apply.

Miscellaneous

Practice Direction 27B governs conduct of actions under the protocol through the Courts. It covers all issues including applications for interim payments and for non-payment of agreed damages. It is anticipated that Practice Direction 27B will be revised before 31st May.

The User Guide is not yet ready and will be published when finalised.

Section 152 Notices will be generated automatically by the system.

Any legal actions for protocol damages and non-protocol damages will be heard as one.

If an Insurer disputes it is the correct Insurer but has been identified as such by the MID then that Insurer must deal with the Claimant and then attempt to identify what it considers to be the correct Insurer.

There is currently no guidance as to whose responsibility it is to advise a Litigant in Person their claim may have a value greater than £5,000.

Be aware some deadlines are working days, but others are calendar days.

If a second medical report is required, the Compensator will arrange and pay for that report. No guidance is given as to what happens if the Compensator refuses to do so.

N.B This document is no substitute for reading the protocol itself (and User Guide when published).

Appendix A

Injury Duration New Tariff
One or more whiplash injuries
Not more than 3 months £240 £260
More than 3 months, but not more than 6 months £495 £520
More than 6 months, but not more than 9 months £840 £895
More than 9 months, but not more than 12 months £1,320 £1,390
More than 12 months, but not more than 15 months £2,040 £2,125
More than 15 months, but not more than 18 months £3,005 £3,100
More than 18 months, but not more than 24 months £4,215 £4,345

The second column above represents a 20% uplift on damages if it is considered that there are exceptional circumstances. The Claimant can advise at the outset or to the medical expert if they consider there are exceptional circumstances. If identified this will be included in the medical report.

The insurer can make an offer up to 20% higher or challenge this.

It will be for the Courts to decide what will constitute exceptional circumstances.

For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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