Whilst the introduction of EL/PL Claims Portal has undoubtedly saved costs for defendants and has promoted speedier settlement of many claims, now we are well into the routine use of this process, the flaws are now starting to be seen.
Too often we see claimant solicitors unable (or unwilling?) to serve Stage 2 settlement packs containing the medical report and special damages claims during prolonged periods of assumed inactivity. 'The medical evidence is not yet complete' is the customary response, or in the alternative, the claimant simply ghosts you and repeatedly provides no reply.
When liability is admitted, Part 8 of the Civil Procedure Rules now allows for an automatic stay in proceedings at the usual three year limitation period. At this stage, very few details are even given to the court and the matter neatly remains under the radar, hidden within the portal process (legitimately or not). Couple this with an unerring reluctance to share any proper developments or treatment progress, and with there being no obligation to disclose medical records, we find insurers with purported fast track cases on their books which are over three years old and are indefinitely stayed with the vague intimation for the parties to write to restore if a settlement cannot be achieved in due course.
There can be simple explanations – a sudden unresponsive claimant, a change of file handler and the case being overlooked, or the claimant having legitimately encountered delays in arranging expert examinations with no medical evidence truly being commissioned to date. However, ignorance is no longer bliss. Essentially in these types of cases, there is now no limitation clock ticking or any disclosure requirements and the rules allow brazen exploitation of the system, going totally against the true purposes of the process which include that damages are paid in a reasonable time. There can be a much more tactical reason to delay disclosing any medical evidence or confirming the true position.
It is as simple as accepting that there won't be a finalised prognosis with which to value a claim if the claimant has been examined and has continued ongoing symptoms and isn't recovering. Any claim where there are symptoms exceeding three years should be of growing concern and the likelihood of spontaneous recovery exponentially reduces. In short, the claimant solicitor can be hiding a valuable claim in plain sight and a beast can lay quietly stayed in the shadowy portal waiting to ambush.
This post-limitation stay in proceedings fails to pressure the claimant into showing their hand and giving the defendant an opportunity to know what they may be facing. It has long been part of the overriding legal principles that a defendant should be aware of the true value and nature of the claim it is facing and for the claimant to serve the medical evidence commissioned to date, and at least a provisional schedule of loss with the Claim Form. The current process completely circumvents this and affords claimants additional time and unnecessarily drags a case out disproportionately once limitation is reached. A file can remain on the shelf with any cursory review merely flagging up that the case is merely awaiting finalised medical evidence hoping it arrives soon, when in fact the portal process allows the pot to slowly bubble away.
Why would a claimant hide a case from an insurer? After all, the majority of the portal claims are indeed low-value fast track claims and are merely waiting for a GP report before settlement can be achieved. Sadly no assumptions should now be made and you must expect the worst, and hope to be proven wrong. It is all about the claimant gaining the maximum time to explore whether a case can develop into a more serious multi-track case, whilst retaining all of the information and control. Given the minimal details and often generic early information included in the Claims Notification Forms at the outset of these claims, it is now increasingly difficult to properly identify the cases of significant potential and value.
Of course, it has long been possible to identify the core characteristics of a claim that mean the development of a pain syndrome or a more serious condition can be predicted, but it required the information within the medical evidence commissioned to date which had to accompany the Part 7 Claim Form upon issue of proceedings at the three-year limitation juncture. The issue is that now this assessment is routinely not being completed at this three year period, or at any stage until the claimant is ready. Unfortunately, it is now even more important that this analysis and investigation is undertaken at as early a stage as is possible so that continued aggressive objections to the default Part 8 stays can be being made.
Not recognising the potential of just one of these nightmare cases at an early stage, can expose you to a nasty surprise. A case can remain under-reserved by hundreds of thousands of pounds. It is also the case that as these claims are going to remain live for longer periods, insurers will have to hold the reserves for indefinite periods with no intel way to determine when it may settle, with renewal quotes likely to be impacted.
Appropriate actions are being missed to assist in the claimant's rehabilitation, making appropriate interim payments or avoiding the case from escalating. Continued pressure must be applied and defendants must take matters into their own hands. Targeted well-reasoned applications should be being made to lift the Part 8 stay and have the matter transferred to Part 7- this allows the matter to be properly dealt with and the defendant to regain some control of the claim with the court's involvement.
Now is not the time to let a sleeping dog lie for fear of it slowly evolving into a battle-scared werewolf just waiting for the moon to be at its fullest before howling; a fair warning with Halloween fast approaching.
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