CHANGES TO THE PRE-ACTION PROTOCOLS THAT WE KNOW ABOUT: LOW VALUE ROAD TRAFFIC ACCIDENTS

Important changes have been made to the Pre-Action Protocols which came into force yesterday. At the moment the whereabout of the the Protocols is a mystery in that they have not been published generally. However there are some changes to the Low Value Personal Injury Claims RTA Protocol.

THE PRE-ACTION PROTOCOL FOR LOW VALUE PERSONAL INJURY CLAIMS IN ROAD TRAFFIC ACCIDENTS

Amendments are made to reflect the introduction of a new system for sourcing medical reports in soft tissue injury claims brought under this Protocol. A ‘not for profit’ company  ‘MedCo Registration Solutions’ (‘MedCo’) has been set up to operate this system, and from 6 April 2015, medico-legal experts and medical reporting organisations (MRO) will need to be registered with MedCo in order to provide medico-legal reports for RTA soft tissue injury claims.

One of the most important amendments is to the cost consequences of offers to settle in soft tissue injury cases.Any offer to settle made before a fixed cost medical report has been obtained and disclosed will have no adverse costs consequences until after the report has been disclosed.

Definitions 

There are some new definitions, particularly relating to medical experts and what constitutes a ‘soft tissue injury claim’:

1.1  In this Protocol—

(A1) ‘accredited medical expert’ means a medical expert who—

(a) prepares a fixed cost medical report pursuant to paragraph 7.8A(1) before 1 January 2016 and, on the date that they are instructed, the expert is registered with MedCo as a provider of reports for soft tissue injury claims; or

(b) prepares a fixed cost medical report pursuant to paragraph 7.8A(1) on or after 1 January 2016 and, on the date that they are instructed, the expert is accredited by MedCo to provide reports for soft tissue injury claims;   

(1A) ‘associate’ means, in respect of a medical expert, a colleague, partner, director, employer or employee in the same practice and ‘associated with’ has the equivalent meaning;

(10A) ‘fixed cost medical report’ means a report in a soft tissue injury claim which is from a medical expert who, save in exceptional circumstances —

(a) has not provided treatment to the claimant;

(b) is not associated with any person who has provided treatment; and

(c) does not propose or recommend treatment that they or an associate then provide;

(12A) ‘MedCo’ means MedCo Registration Solutions;

(16A) ‘soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury;

Aims 

There has been a new addition to the “Aims” section of the Protocol:

3.2  In soft tissue injury claims, the additional aim of this Protocol is to ensure that –

(1) the use and cost of medical reports is controlled;

(2) in most cases only one medical report is obtained;

(3) the medical expert is normally independent of any medical treatment; and

(4) offers are made only after a fixed cost medical report has been obtained and disclosed.

The Application of the New Provisions – Timetable 

The new provisions relating to soft tissue injury claims apply in accordance with the following table. In particular, the provisions apply to all claims where the CNF is submitted on or after the 1st October 2014. :

4.7

(1) Subject to subparagraph (2), provisions for soft tissue injury claims, and in particular the requirement that the first report from a medical expert must be a fixed cost medical report, apply to any such claim for damages which arises from a road traffic accident where the CNF is submitted on or after 1 October 2014.

(2) The provisions, in respect of soft tissue injury claims, for accredited medical experts and the MedCo Portal, and the provisions, in respect of all claims, for searches of ask.CUEPI.com, identified in the first column (and specified
in the corresponding second column) below, apply to claims for damages which arise from a road traffic accident where the CNF is submitted on or after the corresponding date specified in the third column—

Column 1 Column 2 Column 3
Accredited medical experts Paragraph 1.1(A1) 6 April 2015
In a soft tissue injury claim, the requirement that the first medical report must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal Paragraphs 1.1(12A), 7.8A(1), 7.8B(3) and
7.32A
6 April 2015
Searches of askCUEPI.com Paragraphs 5.10(3), 5.10A, 6.3A 6.8(2) and 6.9 1 June 2015

(3) In a soft tissue injury claim, where a medical expert is instructed to provide the first fixed cost medical report before 6 April 2015, but the CNF is submitted on or after that date, that report shall be treated as a fixed cost medical report obtained from an accredited medical expert selected via the MedCo Portal.

Completing the Claims Notification Form

There are amendments to the steps that must be taken in completing the CNF:

6.3A

(1) Before the CNF is sent to the defendant pursuant to paragraph 6.1, the claimant’s legal representative must undertake a search of askCUEPI (website at: www.askCUEPI.com) and must enter in the additional information box in the CNF the unique reference number generated by that search.

(2) Where the claimant has sent the CNF without the unique reference number required by subparagraph (1), the defendant may require the claimant to resend the CNF with the reference number inserted. The period in paragraph 6.11 or 6.13 starts from the date the CNF was sent with the unique reference number.

(3) Where the claimant has sent the CNF without the unique reference number required by subparagraph (1) and the defendant does not require the claimant to resend the CNF pursuant to subparagraph (2), the defendant must respond in accordance with paragraph 6.11 or 6.13.

Fixed Costs 

There are also amendments to the Stage 1 fixed costs. The defendant must now pay the cost of obtaining the fixed cost medical report:

6.18  Except where the claimant is a child, the defendant must pay the Stage 1 fixed costs in rule 45.18 and, in a soft tissue injury claim, the cost of obtaining the fixed cost medical report and any cost for obtaining medical records in rule 45.19(2A) (collectively the “Stage 1 fixed recoverable costs”)…

The Defendant’s Account of the Accident In Soft Tissue Injury Claims

6.19A  Where liability is admitted in a soft tissue injury claim, it is expected that in most cases the defendant’s account will not be relevant to the procedure in Stage 2. In the limited cases where it is considered appropriate, the defendant may send their account to the claimant electronically at the same time as the CNF response. The defendant’s insurer must have the defendant’s written authority to provide this account and, in sending it, is certifying that it has that authority. For the purposes of this paragraph, the defendant’s written authority may be provided electronically.

6.19B  The procedure in paragraph 6.19A applies to the MIB, save that the MIB is certifying that the defendant user of the vehicle has provided such authority.

Soft Tissue Injury Claims – Medical Reports

There Protocol now provides for fixed cost medical reports in soft tissue injury claims. There are detailed provisions on obtaining such reports:

7.8A  In addition to paragraphs 7.1 to 7.7, and subject to paragraph 7.8B, in a soft tissue injury claim—

(1) the first report must be a fixed cost medical report from an accredited medical expert selected for the claim via the MedCo Portal (website at: www.medco.org.uk); and

(2) where the defendant provides a different account under paragraph 6.19A, the claimant must provide this as part of the instructions to the medical expert for the sole purpose of asking the expert to comment on the impact, if any, on diagnosis and prognosis if—

(a) the claimant’s account is found to be true; or

(b) the defendant’s account is found to be true.

7.8B  In a soft tissue injury claim—

(1) it is expected that only one medical report will be required;

(2) a further medical report, whether from the first expert instructed or from an expert in another discipline, will only be justified where—

(a) it is recommended in the first expert’s report; and

(b) that report has first been disclosed to the defendant; and

(3) where the claimant obtains more than one medical report, the first report must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal and any further report from an expert in any of the following disciplines must also be a fixed cost medical report—

(a) Consultant Orthopaedic Surgeon;

(b) Consultant in Accident and Emergency Medicine;

(c) General Practitioner registered with the General Medical Council;

(d) Physiotherapist registered with the Health and Care Professions Council.

Submitting the Stage 2 Settlement Pack

The Stage 2 Settlement Pack must include an invoice for the cost of obtaining the fixed cost report. The Stage 2 Settlement Pack Will be of no effect unless the medical report is a fixed cost medical report:

(4A) in a soft tissue injury claim, the invoice for the cost of obtaining the fixed cost medical report and any invoice for the cost of obtaining medical records;

7.32A  In a soft tissue injury claim, the Stage 2 Settlement Pack is of no effect unless the medical report is a fixed cost medical report. Where the claimant includes more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal and any further report from an expert in any of the disciplines listed in paragraph 7.8B(3)(a) to (d) must also be a fixed cost medical report.

Settlement of the Claim 

Any offer to settle at any stage by either party will automatically include an agreement to pay the cost of the fixed cost medical report.

7.44A  In a soft tissue injury claim, an offer to settle made by either party before a fixed cost medical report has been obtained and disclosed will have no adverse costs consequences until after the report has been disclosed.

Read the full amended version of the Protocol here .

One comment

  1. Great update again as always Gordon. Another point of uncertainty (for me at least) is that 7.2 of this PAP allows (for all claims) additional medical reports to be obtained from other experts where the injuries require reports from more than one medical discipline. However, the new 7.8B says that, for ST injuries, a report from a second expert can only be obtained where the first report has been disclosed to the defendant insurer. How is this first report meant to be disclosed under the portal? The only way this could be done on the portal is by sending the first report with an interim settlement pack but the interim settlement pack is meant to include the initial reports of the experts from each different discipline (as at 7.14), with the subsequent reports from each expert then to be attached to the final stage 2 settlement pack in due course.

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