1. Outcomes from the MOJ Reforms 17 May 2016
David Williams
Partner, DAC Beachcroft Claims Limited

2. Agenda
Recap on the Low Value Protocol
Impact on claim volumes
Claimant behaviours
The future?

3. Recent Reforms
1 April 2013
Reform to the Civil Procedure Rules, including introduction of QOCS, costs budgeting and tougher rules in relation to relief from sanction
Legal Aid Sentencing and Punishment of Offenders Act 2012 implemented – success fees and ATE not recoverable on post CFAs
31 July 2013
Horizontal and Vertical Extension of the Low Value Protocols – claims up to £25,000 for motor, EL and PL (excludes multi-party disease)
Introduction of Fixed Costs for claims commencing within and falling out of the Low Value Protocols (excludes disease claims)

4. 1 October 2013
Implementation of s.69 Enterprise and Regulatory Reform Act 2013, breach of statutory duty no longer founding claim for personal injuries
1 October 2014
Introduction of fixed costs for RTA soft tissue medical reports
1 April 2015
Implementation of s.57 Criminal Justice and Courts Act, courts must strike out fundamentally dishonest claims unless substantial injustice
6 April 2015
Introduction of randomised allocation of experts through MedCo in RTA soft tissue claims, CUE PI search required before claim presented

5. The Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims
Claims expected to have a value of £1,000 - £25,000
Accidents on or after 31 July 2013
Single-Employer Disease claims where no letter of claim before 31 July 2013
Requires admission of liability without contributory negligence
Stage 1 Liability
Stage 2 evidence on quantum and causation
Stage 3 (if required) assessment of damages

7. It will not apply to …
Claims which should fall within the Small Claims Track
Claims with a value of over £25,000 (assessed by the Claimant)
Where the Claimant or Defendant is deceased or a protected party
Where the Claimant is bankrupt
Public Liability claims against individuals
Claims arising from incidents / breach of duty outside England and Wales
Multi-Defendant / PL disease claims
Claims for neglect, abuse, harm by or to children / vulnerable adults

8. Stage 1
The Claimant must complete the Claims Notification Form (CNF) and serve it on the Defendant’s insurer via the Portal (or Defendant where the insurer is not known / no insurer on risk)
The Defendant must send the CNF to its insurer on the day after receipt, and insurer / Defendant must acknowledge the CNF, electronically, on the business day after receiving the CNF
The Defendant must apply for CRU certificate and complete the response section of the CNF and send it to the Claimant:
in EL claims within 30 business days of deemed service of the CNF (PL claims 40 business days)
if liability is denied, the CNF response must contain brief reasons for the denial

9. If a claim falls out of the Protocol
It will proceed under the Pre-Action Protocol for Personal Injury or Industrial Disease Claims
The date of service of the CNF will be treated the date of service of the letter of claim
Fixed Costs apply to claims presented within the Portal which fall out of it
Fixed Costs apply to applications for Pre-Action Disclosure

10. Stage 2
The Claimant should obtain a medical report, and must check its factual accuracy before sending it to the Defendant
Stage 2 Settlement Pack should be sent to the Defendant within 15 days of the Claimant’s approving the final medical report
Reports may be obtained in more than one discipline
Stay where addendum reports required, interim payments
Non-medical reports / witness statements if required to value claim
In Employers Liability claims the Defendant must supply earnings details within 20 days of the admission of liability
Defendant has 15 days to respond to Stage 2 Settlement Pack
35 day negotiation period
Stage 3, Part 8 proceedings, paper or oral hearing

11. Motor Costs: Claim value of £1k to £10k
£200
Stage 1
Stage 2
£300
£500
Total

12. Motor Costs: Claim value of £10k to £25k
£200
Stage 1
Stage 2
£600
£800
Total

13. EL / PL Costs: Claim value of £1k to £10k
£300
Stage 1
Stage 2
£600
£900
Total

14. EL / PL Costs: Claim value of £10k to £25k
£300
Stage 1
Stage 2
£1,300
£1,600
Total

15. Stage 3 – Still within the process
£250
Paper Hearing
£500
Oral Hearing

16. Fixed Recoverable Costs: EL
Pre-Issue
Post-Issue
£1,000 - £5,000
£5,001-£10,000
£10,001-£25,000
Pre-Allocation
Post-Allocation
Post-listing
Trial
Pre-Listing
Pre-Trial
Advocacy Fee
£950
£1,855
£2,500
£2,630
£3,350
£4,280
£500 (to £3,000
+17.5% of damages
+ 12.5% of damages
+ 10% of damages
+ 20% of damages
+ 25% of damages
+30% of damages
£710 (£3,001-£10,000)
over £5k
over £10k
£1,070 (£10,001-£15,000)
£1,705 (£15,000+

17. Fixed Recoverable Costs: PL
Pre-Issue
Post-Issue
£1,000 - £5,000
£5,001-£10,000
£10,001-£25,000
Pre-Allocation
Post-Allocation
Post-listing
Trial
Pre-Listing
Pre-Trial
Advocacy Fee
£950
£1,855
£2,370
£2,450
£3,065
£3,790
£500 (to £3,000
+17.5% of damages
+ 10% of damages
+ 17.5% of damages
+ 22.5% of damages
27.5% of damages
£710 (£3,001-£10,000)
over £5k
over £10k
£1,070 (£10,001-£15,000)
£1,705 (£15,000+

18. Management Information on claims volumes from the Compensation Recovery Unit

24. Number of EL and PL claims reaching settlement within the Portal Process

25. Average General Damages paid on EL and PL claims proceeding to settlement within the Portal process

26. Impact of the implementation of the Low Value Protocol on Claimants' solicitors' costs

27. Behaviours of Claimants’ solicitors
Extract from a CNF:
3.2 Where did the accident happen? Please provide sufficient detail to identify the precise accident location (e.g. road name, house number, permanent location feature, grid reference etc. )
Cannon Hill Park, Birmingham, on the ride – Twister

28. 3.3 Please give a description of the accident and provide a sketch or photograph, if appropriate
The claimant was exposed to a hazard (a defective fair ground ride) and/or exposed to the negligent or improper use of the fairground ride controls by the Defendant (its servant agent or employee).

29. 4.1 Why does the claimant believe that the defendant was to blame for the accident.
Due to breach of statutory duty and /or negligence
Claimants willing to resubmit claims through the Portal when insufficient information / missing mandatory information?

30. What have we seen so far?
Psychiatric injuries – NO – but will this change on whiplash reform?
Physio - NO – but Brown v Haven Insurance Company Ltd
Inadequate information – YES
Allegations of breach of statutory duty – YES – was ERRA a figment of our imagination?
Claims for success fees and ATE – YES
Pre-action Disclosure applications where claims fall from the Portal – YES
Ignoring of the Portal process – YES
Non-Portal claims submitted through the portal – YES
Move into non-Portal areas – YES – NIHL, clinical negligence, financial misselling

31. Market Effects
Colemans-CTTS figures volunteered at FOIL–MASS seminar 19/11/13
Pre-LASPO average income from EL claims £4,076
Post-LASPO – no success fee (no MOJ) £3,615
Post-LASPO 20% settling within Portal Process £2,527
Post-LASPO 40% settling within Portal Process £2,371

32. Mergers and Acquisition

35. Incentives 40% reduction in number of Claims Management Companies April 2013-April 2014

36. Move into new areas of work - Noise Induced Hearing Loss
Specifically targeted by Claims Management Companies and open to abuse and potentially fraudulent behaviour
Repudiation rate over 70%
Target the Claimants’ firms and experts with the arguments known to work
Robust fraud criteria
NIHL specific software - where medical evidence is received to assess causation, limitation and quantum, limiting our clients’ indemnity spend and identify fraudulent behaviours

37. Fraud in Casualty Claims
EL 38% Slips, Trips or falls on same level
22% Handling, lifting or carrying
13% Struck by moving object
PL 62% Slips, Trips of falls on same level
10% Struck by moving object
7% Falls from height
Increase in proportion of fraud v non fraud claims
More fraud or better detection?

38. Switch from EL to PL

39. Impact of LASPO
Abolition of recovery of additional liabilities - Success fee and ATE premiums
Fixed Cost Regime
QOCS limits recovery of costs on repudiated claims
reduces risk for Claimants in continuing with fraudulent claims
reduces the effectiveness of drop hands offers

40. Fundamental Dishonesty
What did we think it would mean?
Gosling v Screwfix (29 March 2014) – our first definition
Criminal Justice and Court Act 2015

41. Extension of the Portal
Reduced time limits for liability decisions – spotting your red flags in 30/40 days
Portal retention policies – costs benefits driving need to keep claims in the portal
Easiest fraudulent claims to make via the portal – increase in organised PL fraud

42. Enterprise and Regulatory Reform Act 2013
Removal of Strict Liability in certain situations – employers able to defend on negligence grounds
Decrease in EL fraud - too difficult?
Move into NIHL claims

43. What will the future bring?