Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (“The RTA Small Claims Protocol”)
Title | Para No. |
Definitions | PARA 1.1 |
PARA. 2.1 | |
PARA. 3.1 | |
PARA. 4.1 | |
PARA. 5.1 | |
PARA. 6.1 | |
PARA. 7.1 | |
Valutation of the claim by the compensator and making offers to settle | PARA. 8.1 |
PARA. 9.1 | |
PARA. 10.1 | |
PARA 11.1 | |
PARA. 12.1 | |
ANNEX A | |
Standard instructions for use by compensator requesting further report on claimant’s behalf | ANNEX B |
ANNEX C | |
ANNEX D |
Definitions
Introduction
1.1
(1) This section explains the meaning of certain terms used in this Protocol, shown in bold in this Protocol.
(2) The meaning of some terms is explained as and where they are used in this Protocol. These are not shown in bold.
(3) Certain specific definitions relating to offers and settlement are contained in paragraph 10.10 of this Protocol. These terms are underlined where used.
Terms used in this Protocol
1.2 In this Protocol—
(“accident” – see (28) under road traffic accident;)
(1) “accredited medical expert” means a medical expert who, on the date that they are instructed, is accredited by MedCo to provide fixed cost medical reports for claims made under this Protocol;
(2) “admission of liability in full” means that the compensator—
(a) accepts the accident happened;
(b) accepts fault in full for the accident;
(c) accepts that the claimant suffered some loss including injury which was caused by the accident, but not the type and amount of any loss or injury; and
(d) accepts that the 3 year time limit for bringing the claim has not expired;
(5.4 explains the normal time limit for issuing court proceedings)
(3) “admission of liability in part” means that the compensator-
(a) accepts the accident happened;
(b) accepts fault in part for the accident;
(c) accepts that the claimant suffered some loss including injury which was caused by the accident, but not the type and amount of any loss or injury; and
(d) accepts that the 3 year time limit for bringing the claim has not expired;
(4) “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;
(“authorised representative” – see (26) under representative;)
(5) “bank holiday” and “business day” have the meaning set out in paragraph 1.4, covering time periods;
(6) “child” means a person who is under 18 years old;
(7) “claim”means a claim made under this Protocol, for the payment of damages for injury and any other protocol damages;
(“claim for fees” – see (16) under fees;)
(8) “claimant” means a person starting a claim under this Protocol;
(9) “compensator” means—
(a) the defendant’s insurer whose details appear on the Motor Insurance Database;
(b) the organisation or business whose insurance or self-insured status covers the defendant for the claim;
(c) if the defendant is not insured, an RTA insurer, the MIB or their agents; or
(d) a representative of the defendant, insurer, RTA insurer or the MIB;
DAMAGES DEFINITIONS
(10) “damages for injury”means compensation for the pain, suffering and loss of amenity suffered by the claimant because of a road traffic accident;
(11) “other protocol damages” means the claimant’s losses, costs and expenses (other than damages for injury) relating to the accident. These will consist of “other damages – injury related” and “other damages – property”, defined below. Any liability for the claimant to repay another person or business is included in this definition;
(12) “other damages – injury related” means the claimant’s losses, costs and expenses relating to the injury, but not the damages for the injury itself. Examples would be costs of treatment or prescriptions, loss of earnings because of time off work and clothing damaged because of the injury;
(13) “other damages - property” means compensation for damage to the claimant’s property as a result of the accident, but not linked to the injury. An example would be shopping or other personal items in the car which are damaged in the accident. This definition also includes protocol vehicle costs, but not non-protocol vehicle costs (See also under VEHICLE COSTS DEFINITIONS below);
(14) “defendant” means the person against whom the claim is made under this Protocol, but excluding an insurer who could be subject to a direct claim under the European Communities (Rights against Insurers) Regulations 2002;
(15) “entering the claim” means completing and sending the online Small Claim Notification Form which is generated by the Portal. “Enter the claim”, “the claim is entered”, “the claim has been entered” etc. all have the same meaning;
(16) “fees” means the fee permitted by Practice Direction 27B for a medical report or any other disbursement permitted by that Practice Direction, as incurred or paid by the claimant or their representative. Claim for fees has the corresponding meaning;
(17) “fixed cost medical report” means a report in a claim to which this Protocol applies which is from a medical expert who, unless there are 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;
(18) “Guide to Making a Claim” means the Guide to Making a Claim Under the RTA Small Claims Protocol, which has been produced to assist unrepresented claimants and which can be found at: https://www.officialinjuryclaim.org.uk/ (see also paragraph 2.3);
(“legal representative” – see (26) under representative;)
(19) “MedCo” means MedCo Registration Solutions: MedCo is the online service used to produce a randomised selection of providers for fixed cost medical reports;
(20) “medical expert” means a person who is—
(a) registered with the General Medical Council;
(b) registered with the General Dental Council; or
(c) a Psychologist or Physiotherapist registered with the Health Care Professions Council;
(d) in the case of persons outside England and Wales, a person who is recognised by the country in which they practise as being a medical expert;
(21) “MIB” means The Motor Insurers’ Bureau;
(22) “Motor Insurance Database” or “MID” means the central record of all insured vehicles in the UK, managed by the MIB;
(23) “motor vehicle”means a mechanically propelled vehicle intended for use on roads;
(“non-protocol vehicle costs” – see (36) under Vehicle Costs Definitions);
(“other damages – injury related” – see (12) under Damages Definitions);
(“other damages – property”– see (13) under Damages Definitions);
(“other protocol damages” – see (11) under Damages Definitions);
(24) “Portal” means the Small Claims Portal set up to handle personal injury claims under this Protocol (see also paragraph 2.2);
(25) “Portal Support Centre”means the body contracted to—
(a) provide call centre support to users of the Portal; and
(b) enter claims on the system on behalf of unrepresented claimants unable to use the Portal themselves
(The Portal Support Centre can be contacted at:
Official Injury Claim
Linford Wood House, 6-12 Capital Drive,
Linford Wood,
Milton Keynes MK14 6XT
Telephone: 0800 118 1631
Email: customer.service@officialinjuryclaim.org.uk);
(“pre-accident value of the vehicle” – see (34) under Vehicle Costs Definitions);
(“protocol vehicle costs” – see (35) under Vehicle Costs Definitions);
(26) “representative” means a legal representative regulated by the Law Society, the Chartered Institute of Legal Executives or the General Council of the Bar, or an authorised representative regulated by the Financial Conduct Authority, who—
(a) for the claimant, provides advice as to the content of the claim or takes steps in the claim on the claimant’s behalf and on their instructions, other than through the Portal Support Centre; or
(b) for the compensator, handles the claim on their behalf
(and “representation” and “represented”have the equivalent meaning);
(27) “road” means any highway and any other road to which the public has access and includes bridges over which a road passes;
(28) “road traffic accident”means an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions[1] as defined by section 53 of the Health and Safety at Work etc Act 1974
(and “accident” where used in this Protocol has the same meaning);
(29) “RTA Insurer” means an insurer with a duty under section 151 of the Road Traffic Act 1988 to satisfy a judgment against the defendant;
(30) “Small Claim Notification Form” or “SCNF”means the online form completed by the claimant which sets out the details of their claim;
(Statement of Truth – see paragraph 1.3 below);
(31) “tariff” and “tariff amount” means any tariff of damages for whiplash injuries and, if relevant, minor psychological injuries suffered on the same occasion as the whiplash injuries, set by the Whiplash Injury Regulations 2021;
(32) “unrepresented” and “unrepresented claimant”means a claimant who starts and continues to handle their claim without representation. “Unrepresented claimant” includes any claimant who starts and continues their claim without representation, but who receives assistance from the Portal Support Centre;
(33) “uplift” means the amount greater than the tariff amount which the claimant may claim in defined exceptional circumstances as set out in the Whiplash Injury Regulations 2021;
VEHICLE COSTS DEFINITIONS
“Vehicle costs” are divided into “protocol vehicle costs” and “non-protocol vehicle costs”;
(34) Vehicle costs (whether “protocol vehicle costs” or “non-protocol vehicle costs”) are any one or more of the following costs or claims—
(a) the pre-accident value of the vehicle, which means, where the vehicle was damaged as a result of the accident, the difference in the value of the vehicle immediately before the accident occurred and its value because of the damage caused by the accident;
(b) the cost of repairing the vehicle;
(c) vehicle insurance excess;
(d) the cost of hiring a vehicle;
(e) vehicle recovery and storage charges;
(35) “protocol vehicle costs” are vehicle costs which:
(a) at the time the claim is made, have been paid by the claimant personally or by an individual on behalf of the claimant, including any vehicle insurance excess;
(b) in the case of the pre-accident value of the vehicle, are claimed by the claimant personally and not payable by the claimant to the claimant’s insurers; or
(c) in the case of repair costs, are the subject of an estimate of the costs the claimant (or an individual on their behalf) intends to pay personally;
(36) “non-protocol vehicle costs” means vehicle costs which—
(a) are not protocol vehicle costs; and
(b) would be payable by the claimant to one or more third party organisations or businesses out of any damages recovered;
(37) “vulnerable road user” – a road user is treated as “vulnerable” where, at the time the accident occurred, the claimant was—
(a) using a motor cycle;
(b) a pillion passenger on, or a passenger in sidecar attached to, a motor cycle;
(c) using a wheel chair, a powered wheelchair or a mobility scooter;
(d) using a bicycle or other pedal cycle;
(e) riding a horse; or
(f) a pedestrian;
And “vulnerable road user” has that meaning in this Protocol;
(38) “whiplash injury” or “whiplash injuries” means an injury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence as defined in section 1 of the Civil Liability Act 2018 and as further applied by section 3 of that Act to claims where the duration of the whiplash injury or any of the whiplash injuries—
(a) does not exceed, or is not likely to exceed, two years; or
(b) would not have exceeded, or would not be likely to exceed, two years but for the claimant’s failure to take reasonable steps to mitigate its effect.
Statement of Truth - meaning
1.3
(1) Where in this Protocol a document or online form is required to be verified by a statement of truth—
(a) The person signing verifies that they believe the facts stated in that document/form are true;
(b) the requirement for a signature is satisfied by the person entering their name on the online form;
(c) the person signing needs to be aware that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document (including an online form) verified by a statement of truth without an honest belief in its truth.
(2) Where the statement of truth is completed by the claimant’s legal representative, or by a member of staff at the Portal Support Centre on the claimant’s behalf, the signature of that person will be taken as their statement that—
(a) the claimant on whose behalf they have signed has authorised them to do so;
(b) before signing they had explained to the claimant (through an interpreter where necessary) that in signing the statement of truth they would be confirming the claimant’s belief that the facts stated in the document were true;
(c) before signing they had informed the claimant of the possible consequences to the claimant if it should subsequently appear that the claimant did not have an honest belief in the truth of those facts; and
(d) they hold the document with a statement of truth signed by the claimant.
(3) An authorised representative is not entitled to sign a statement of truth but must—
(i) obtain the claimant’s signature on the completed document; and
(ii) upload the document onto the Portal including the statement of truth signed by the claimant.
Time periods
1.4
(1) In this Protocol—
(a) a reference to a fixed number of days is a reference to “business days”;
(b) “business day” means any day, except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day; and
(c) “bank holiday”means a bank holiday in England and Wales.
(2) Where a party must respond within a fixed number of days, the time for responding starts on the first business day after the information was sent to that party.
1.5 A reference to a rule or practice direction, unless otherwise defined, is a reference to a rule in the Civil Procedure Rules 1998 (“CPR”) or a practice direction supplementing them.
Free text fields – character limits
1.6
(1) Where a free text field is provided on the Portal, the content is limited to 500 characters (including spaces). The number of characters available will be displayed immediately below the field.
(2) A party can if they wish provide more information separately by taking the following steps—
(a) include a brief summary in the field;
(b) include in the field an indication that more information is provided in a named separate document;
(c) upload that named document onto the Portal as soon as possible after completing the field.
Preamble
General
2.1
(1) This Protocol applies where a claimant who has suffered personal injuries (including but not limited to whiplash injuries) because of a road traffic accident wishes to make a claim for compensation and the amount claimed for their injuries is not more than £5,000 and for their overall claim is not more than £10,000.This would mean that, if the claim was dealt with by a court, it would be normally be allocated to the small claims track and dealt with as a small claim.
(2) The Protocol describes the behaviour expected from both parties before starting court proceedings. It establishes a process to help the parties to reach a fair settlement in respect of any claim to which the Protocol applies.
(3) The Protocol also deals with the first steps the parties must take if they are unable to reach a settlement and the claimant wishes to start court proceedings. Claims can leave the Portal for the court to determine specific issues such as liability, then return to the Portal for later steps as directed by the court.
(4) The Civil Procedure Rules 1998 enable the court to consider costs sanctions where this Protocol is not followed.
The Portal
2.2 A key feature of this Protocol is the use of an online Portal. The Portal is an online service through which the parties communicate. The Portal is used to make a claim, to exchange information and documents, and to negotiate a settlement or start court proceedings. An unrepresented claimant also uses the Portal to obtain any medical report in support of their claim.
The Guide to Making a Claim
2.3
(1) This Protocol should be read together with the Guide to Making a Claim Under the RTA Small Claims Protocol, which provides more information about when and how to use this Protocol. The Guide to Making a Claim can be found at:
https://www.officialinjuryclaim.org.uk/
Copies may also be obtained from the Portal Support Centre.
(2) For the avoidance of doubt, if anything in the Guide to Making a Claim conflicts with the provisions of this Protocol, this Protocol takes precedence.
Aims
General
3.1 The aims of this Protocol are that—
(1) the compensator makes liability decisions promptly and communicates those decisions through the Portal;
(2) where liability is admitted, the parties negotiate settlement of damages and any fees using the Portal and the process set out in the Protocol without the need for the claimant to start proceedings;
(3) the Portal is used to exchange evidence that the parties may need to use in court proceedings where liability or the value of the claim is being decided;
(4) where claims cannot be settled, the Portal provides a process by which the claimant can proceed to court with the evidence and other information uploaded onto the Portal in a form suitable for use at court;
(5) claimants can agree interim payments through the Portal where appropriate; and
(6) interim payments, damages and any fees are paid within a reasonable time.
Aims – medical reporting
3.2 This Protocol also aims 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 first report is always a fixed cost medical report.
Scope: Claims to which this Protocol applies
Introduction
4.1 This section explains the claims to which this Protocol applies, including what value of claim is within the scope of this Protocol.
When to use this Protocol
4.2 This Protocol applies to any claim where all of the following conditions apply—
(1) the claim arises from a road traffic accident which occurred in England or Wales on or after31 May 2021;
(2) the claim includes a claim for damages for injury; and
(3) the claimant values the overall claim at no more than £10,000 and the claim for damages for injury at no more than £5,000,
save that the value of any non-protocol vehicle costs is excluded for the purposes of valuing the claim in this Protocol.
4.3 Even if all of the conditions in paragraph 4.2 do apply, this Protocol does not apply to a claim—
(a) in respect of a breach of duty owed to a road user by a person who is not a road user;
(b) where the injuries which are claimed for were at least partly caused by a breach by the defendant of one or more of the relevant provisions as defined by section 53 of the Health and Safety at Work etc Act 1974;
(c) to the MIB pursuant to the Untraced Drivers' Agreement 2017 or any subsequent or supplementary Untraced Drivers’ Agreements (this agreement applies where a claim involves an accident with a driver who has not been identified – also known as a “hit and run” – this Protocol should not be used when making such a claim);
(d) where at the time the accident occurred, the claimant was a vulnerable road user;
(e) where the claimant or defendant acts as a personal representative of a deceased person;
(f) where on the date theclaim is started, the claimant is a child;
(g) where the claimant or defendant is a protected party as defined in rule 21.1(2);
(h) where the claimant is bankrupt; or
(i) where the defendant’s vehicle is registered outside the United Kingdom.
4.4 If the claimant uses this Protocol where any of the circumstances in paragraph 4.3 apply, the claim will not be accepted, and the claimant will be notified of the reason for non-acceptance through the Portal. The claimant should also consider seeking advice in these circumstances.
Circumstances when this Protocol will no longer apply to a claim
4.5
(1) This Protocol will no longer apply to a claim where—
(a) either party notifies the other through the Portal that the claim has been revalued and that they reasonably believe the overall claim is more than £10,000 or the claim for damages for injury is more than £5,000;
(b) either the claimant or defendant becomes a protected party as defined in rule 21.1(2);
(c) the compensator notifies the claimant through the Portal that the claim is unsuitable for this Protocol because there are complex issues of fact or law;
(d) the compensator through the Portal makes an allegation of fraud or fundamental dishonesty against the claimant in respect of their claim;
(e) the compensator disputes or continues to dispute under paragraph 8.9 that the accident caused the claimant any injury following disclosure of a medical report;
“(ea) all of the following apply—
(i) an RTA insurer, the MIB or its agent responds as compensator;
(ii) no address is provided for the defendant by either party; and
(iii) the claimant prepares the court form by following the steps set out in paragraphs 12.7(1) and 12.7(2) below; or
(f) the court makes an order in proceedings that the claim must exit the Portal and be added to those proceedings.
(2) When notifying the claimant under paragraph (1)(c) or (d) above, the compensator must explain on the Portal the reasons for their decision why the case is not suitable for the small claims track, including the allegation made under paragraph (1)(d).
(2A) Where paragraph (1)(ea) applies, the claimant may refer to the absence of an address for the defendant as a factor to be taken into consideration in deciding whether the case is no longer suitable for the small claims track.
(3) The Guide to Making a Claim provides further information on valuing the claim.
(4) The claimant should consider obtaining advice in these circumstances.
4.6
(1) In this paragraph and in paragraph 4.7, the following terms are used:
(a) “the PI Protocol” means the Pre-Action Protocol for Personal Injury Claims; and
(b) “the RTA Protocol” means the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
(2) In any claim to which paragraph 4.5(1)(a) to (d) applies and save where paragraph 4.7 below applies, the claim will proceed under the PI Protocol starting at paragraph 6.3 of that protocol.
(Paragraph 6.3 of the PI Protocol allows a maximum of three months for the defendant to investigate the claim)
(3) Where paragraph 4.5(1)(e) applies, the claim need not proceed under any pre-action protocol and the claimant may start court proceedings.
(4) Where paragraph 4.5(1)(ea) applies, the claimant may start court proceedings unless the claim is one to which the Untraced Drivers' Agreement 2017 or any subsequent or supplementary Untraced Drivers’ Agreements apply.
4.7 The claim will proceed under the RTA Protocol starting at paragraph 6.1 of that protocol, as long as—
(a) the claimant reasonably believes the value of the claim is no more than the upper limit for the RTA Protocol;
(b) the claim is not one which was started in the RTA Protocol and no longer continued in that protocol; and
(c) either—
(i) there was an admission of liability in full under this Protocol within the response period;
(ii) there was an admission of liability in full but subject to an argument that the claimant contributed to their injuries by not wearing a seatbelt (where the claimant admitted not doing so); or
(iii) the period for a liability response under this Protocol has not yet expired.
Making a claim
Introduction
5.1 This section explains—
(a) the steps the claimant must take in order to start their claim;
(b) the information that the claimant must give to the compensator through the Portal;
(c) how the claimant may claim for other protocol damages; and
(d) how an unrepresented claimant may ask for help in entering their claim on the Portal.
Using the Portal
5.2
(1) All claims to which this Protocol applies must be submitted through the online Portal, which can be accessed at https://www.officialinjuryclaim.org.uk/claimants .
(2) Once the compensator is notified about the claim, the Portal must be used by both the claimant and the compensator, as set out in this Protocol.
(3) Support for unrepresented claimants who are unable to use the Portal can be obtained from the Portal Support Centre.
(4) Where—
(a) a claim has started in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents;
(b) the date of the accident is on or after 31 May 2021; and
(c) the parties have agreed that the claim should have started in this Protocol,
this Protocol should be applied starting at this paragraph.
Starting a claim
5.3 The claim is started by entering the claim on the Portal.
Limitation period
5.4 The law states that in a claim for compensation for injuries, court proceedings must normally be brought (that is, started) no later than 3 years from the date of the accident. If the claimant does not start court proceedings within 3 years, they may lose their right to bring a claim.
5.5 Entering the claim on the Portal does not count as starting court proceedings.
5.6
(1) The claimant may start court proceedings if at any point they believe that the 3-year period will end before the steps that must be taken under this Protocol are completed.
(2) Where the claimant starts proceedings under this paragraph, they must apply to the court for an order to stay (meaning “put on hold”) those proceedings while the parties complete the steps under this Protocol.
(3) If the claimant has already started proceedings, for example for liability to be determined, those proceedings will count for limitation purposes and the claimant does not need to start proceedings again under this section.
(4) The claimant must, before starting proceedings, complete the SCNF and send it to the compensator as set out in paragraphs 5.9 to 5.18, below, if they have not already done so.
(5) Where the claimant wishes to start proceedings in a claim to which this Protocol applies—
(a) they must use the procedure set out in Practice Direction 27B; and
(b) Paragraph 12.12 provides more information about the steps that the claimant must take.
Conducting an askCUE PI search
5.7
(1) The askCUE PI (personal injury) service allows a claimant’s representative to search the askCUE PI database for entries relating to the claimant which may be logged on the database. These records provide information regarding any earlier personal injury claims made by the claimant.
(2) Before theclaim is entered on the Portal, the claimant’s representative must undertake a search of askCUE PI (website at: www.askCUE.co.uk) and must supply the unique reference number generated by that search when the claim is entered.
(3) Where the claim has started in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and a search of askCUE PI has been undertaken for the purposes of that Protocol, the claimant’s representative may supply the unique reference number generated by that search.
(4) Where the claimant is unrepresented, the Portal will automatically generate the askCUE PI search result, which the claimant may then view using the Portal unless the claimant has not undergone or has failed an identity check.
Other linked claims
5.8
(1) The Portal will conduct a search once the claim is entered on the Portal, to identify whether there are other claims entered on the Portal arising out of the same accident. This is to enable the Portal to link such claims together, so that a claimant proceeding to court knows there may be other claims to be considered by the court.
(2) Where such a link is identified, the parties in each of these claims will be notified of the link.
Completing the online Small Claim Notification Form
5.9
(1) The SCNF includes a series of “inputs” (which include boxes, fields, radio buttons and uploads) that are marked as “mandatory”, which means that they must be completed before the claim can be entered on the Portal.
(2) The claim cannot be entered on the Portal until all of the mandatory inputs have been completed. Until the claimis entered on the Portal, the claim will not be sent to the compensator and time for the compensator to respond will not start.
(3) The claimant must also make a reasonable attempt to complete those inputs that are not marked as mandatory.
5.10
(1) The claimant may upload photographs, sketch plans, witness statements, dashcam or other video clips or other documents or data to the Portal in support of their claim that the defendant was at fault for the accident.
(2) Uploading under paragraph (1) can be done at any time up to the point where the claimant creates the Court Pack under section 12. However the claimant should normally allow at least 10 days for new evidence to be considered before proceedings are started.
(3) The court will take account of evidence uploaded under paragraph (1) to determine liability, and so it is important that the claimant uploads all evidence on which they want to rely. The court may decide not to allow new evidence to be considered if it is produced after proceedings are started.
5.11 Where an unrepresented claimant asks for assistance from the Portal Support Centre to enter the claim, it is the claimant who must provide all the required information before the claim can be entered.
Injuries
5.12
(1) The claimant will be asked to describe their injuries on the Portal. This information is important as it will be provided to any medical expert instructed to provide a report on the claimant’s injuries.
(2) The claimant should enter details of all their injuries on the Portal as best they can, although they will have the opportunity to tell the medical expert more about their injuries at any medical examination.
(3) Where the claimant states that they suffered a whiplash injury, the claimant will also be asked to state—
(a) whether they consider their whiplash injury was exceptionally severe;
(b) whether their circumstances have had an impact on their pain, suffering and loss of amenity caused by the whiplash injury or injuries and if so, whether they consider those circumstances were exceptional.
(4) the information at paragraph (3) will be provided to the medical expert for the purposes of considering any claim for uplift. The claimant will have the opportunity to answer these questions again after the medical report has been received.
Other protocol damages
5.13
(1) Any claim for other protocol damages must be made through the Portal and should,
where possible, be made when the claim is entered on the Portal.
(2) The claimant can add items of other protocol damages to their claim on the Portal at any time up to the point where the claimant sends their fixed cost medical report to the compensator.
(3) Section 7 and section 8 give more information on how to obtain a medical report and the point at which it is appropriate to send a medical report to the compensator.
Vehicle costs
5.14
(1) Although protocol vehicle costs are included in other protocol damages, claimsfor non-protocol vehicle costs are not made under this Protocol, but are dealt with under industry agreements between relevant organisations and insurers.
(2) Where there is a claim for protocol vehicle costs, the claimant must—
(a) state, when entering the claim on the Portal, that the claimant has incurred or paid for these losses personally or intends to pay for them (or that an individual has done so/intends to do so on their behalf); and
(b) provide details of the amounts claimed, which should be supported by documents as soon as possible.
(3) Where there are non-protocol vehicle costs, the claimant must state when entering the claim on the Portal that these are being dealt with by another organisation or business.
Rehabilitation
5.15 The claimant will be asked when completing the SCNF whether they have been advised to seek further medical treatment such as physiotherapy for their injuries. The answer to this question will enable the compensator to decide whether to offer the claimant access to or funding for further treatment or therapy.
Statement of Truth
5.16 The online SCNF requires the claimant to sign a statement of truth, to show that the claimant believes that the contents of the SCNF are true.
5.17
(1) Where the SCNF is completed by the claimant’s legal representative, they must tick the appropriate box as proof that they hold a SCNF signed by the claimant.
(2) Where the SCNF is completed by an authorised representative on behalf of the claimant, the statement of truth must be signed by the claimant in accordance with paragraph 1.3(3). The authorised representative must tick the appropriate boxes as confirmation that they have uploaded the form including the statement of truth signed by the claimant.
5.18 Where the SCNF is completed by the PortalSupport Centre on behalf of an unrepresented claimant, the Centre must tick the appropriate box as proof that they hold a SCNF signed by the claimant authorising them to do so.
Steps after the SCNF is entered on the Portal
5.19
(1) When the SCNF is entered on the Portal, the Portal will—
(a) search the Motor Insurance Database (“MID search”) to identify the appropriate compensator;
(b) send the claim to the appropriate compensator as identified by the MID search.
(2) Where the MID search does not identify a compensator under paragraph (1) above, the claim will be sent to the MIB to deal as compensator.
Steps after the claim is sent to the compensator
5.20
(1) As soon as the claim has been sent to the compensator, the claim is accepted on the Portal and the identity of the compensator notified to the claimant.
(2) At the same time the Portal will generate a “Defendant Only SCNF”, which will be available online through the Portal and must be sent to the defendant (not the compensator) by first class post as soon as practicable after it is generated.
(3) Where the claimant is represented, the claimant’s representative must send the Defendant Only SCNF to the defendant.
(4) Where the claimant is unrepresented, the compensator will be responsible for sending the Defendant Only SCNF to the defendant.
Liability
Introduction
6.1 This section explains—
(a) the time in which the compensator must notify the claimant about their decision on liability;
(b) the contents of the Compensator’sResponse; and
(c) the steps that follow after the claimant is notified about that response, depending upon what the compensator has decided.
Response times for compensators
6.2 The compensator must provide their response on liability to the claimant through the Portal within 30 days of the date on which the claim is accepted on the Portal.
6.3 Where the MID search does not identify a compensator and the claim is to be dealt with by the MIB or its agents, the response on liability must be provided to the claimant through the Portal within 40 days of the date on which the claim is accepted on the Portal.
6.4 Where the MIB passes the claim to another compensator to act on its behalf, that compensator must notify the claimant of that fact through the Portal. There is no extension to the time period in paragraph 6.3 above.
Other linked claims
6.5
(1) Paragraph 5.8 explains the process by which the Portal will search for claims which are linked.
(2) Where the Portal identifies a link to another claim, the parties in each of these claims will be notified of the link.
The Compensator’s Response
6.6
(1)When a compensator provides their response on liability on the Portal in the “Compensator’s Response”, they must choose from the following options—
(a) make an admission of liability in full;
(b) make an admission of liability in part;
(c) deny liability; or
(d) admit fault (in full or in part) for the accident, but dispute that the accident caused any injury to the claimant.
(2) Unless the compensator makes an admission of liability in full, the Compensator’s Response on liability must also set out the defendant’s version of events and provide any evidence in support.
(3) An admission of liability in part under (b) and an admission of fault in part under (d) must include the percentage for which the compensator admits liability or fault as appropriate.
Effect of admission of liability “in full” or “in part”
6.7
(1) Save where paragraph (2) applies, an admission of liability by the compensator is binding only on the compensator and only to the extent of the claim as presented within this Protocol, that is for damages for injury and other protocol damages. This includes a response in which the compensator admits liability only in part.
(2) Where the claimant starts proceedings to assess the value of their claim, whether according to this Protocol or otherwise, the admission is binding to the extent of all claims made in those proceedings.
(3) An admission of fault in full or in part under paragraph 6.6(1)(d) above is equally binding on the compensator, as if paragraphs (1) and (2) above applied to that admission.
(4) Paragraph 8.9 provides that the compensator may in certain circumstances withdraw an admission that the claimant suffered some injury which was caused by the accident (but not any other admission).
(5) Paragraphs (1) and (2) above (but not paragraph (4)) also apply to any claim where liability is taken to be admitted under paragraphs 6.15 or 8.9A below.
Further proposals on fault where there is an admission of liability in part
6.8
(1) Where the compensator makes an admission of liability in part, the claimant may accept that part admission as determining the issue of liability. In doing so the claimant is accepting the remaining percentage of liability, i.e. of fault for the accident.
(2) Otherwise the claimant may challenge the part admission, by using the “challenge liability” option on the Portal. The challenge may be made at any time before the claimant is ready to send the medical report to the compensator for the purposes of an offer, under paragraph 8.2(3) below. The claimant may either—
(a) reject the admission of liability in part and continue to argue that the defendant is liable in full; or
(b) make a proposal under paragraph (3) below.
(3) The claimant and the compensator may make further proposals on the extent to which the defendant was liable for the accident, i.e. the percentage contribution by the defendant.
(4) All proposals must be made on the Portal.
(5) The claimant may make a counter proposal on liability in part, as long as this is for a lower percentage liability on the defendant than any previous proposal by the claimant.
(6) The compensator may make a further proposal on liability in part, as long as this is for a higher percentage liability on the defendant than any previous admission by the compensator.
(7) Each party may make up to 3 proposals on liability through the Portal.
(8) The Guide to Making a Claim provides more information on making counter proposals.
6.9
(1) A further proposal on liability in part by either the claimant or the compensator under paragraph 6.8 is made without prejudice, that is it cannot be referred to in any court proceedings (save as set out in paragraph (2) below) and is not a formal admission of liability in part.
(2) Where—
(a) an admission of liability in part is accepted by the claimant under paragraph 6.8(1); or
(b) a further proposal on liability in part by one party is accepted by the other party under paragraph 6.8,
that creates a binding agreement on liability for the purposes of this claim which can be referred to in court proceedings.
(3) Where the claimant starts proceedings to assess the value of their claim, whether according to this Protocol or otherwise, an agreement reached under paragraph (2) above is binding to the extent of all claims made in those proceedings.
(4) Neither the claimant nor the compensator can withdraw from an agreement made as set out in paragraph (2) above.
(5) An agreement under paragraph (2) above in which the claimant accepts any proposal for a percentage of liability in part means that any settlement agreed, any offers or interim payments will have to be reduced to take this percentage into account.
Steps where there is an admission of liability in full or in part – medical reports
6.10
(1) Where the compensator admits liability in full or in part, the claimant must consider obtaining a medical report.
(2) This applies whether or not the claimant accepts an admission of liability in part or challenges that part admission under paragraph 6.8. The claimant may take steps to obtain a medical report at the same time as challenging the admission of liability in part.
(3) Where the claim consists of, or includes, a claim for a whiplash injury, the claimant must obtain a medical report. The whiplash injury element of the claim cannot be settled until the claimant has obtained, and the compensator has seen, the medical report.
(4) Section 7 below provides more information about medical reports and when and how they are obtained.
(5) Paragraphs 7.1 and 8.15 below explain the circumstances in which the claimant may make or consider an offer to settle their claim for non-whiplash injury without a medical report.
Steps where the compensator disputes that the accident caused any injury
6.11
(1) This paragraph applies where the compensator accepts fault for the accident (in full or in part) but disputes that the accident caused any injury to the claimant, in accordance with paragraph 6.6(1)(d) above.
(2) Where the claimant decides to proceed with the claim, paragraph 7.9 will apply and the medical expert will be asked to comment on the dispute in their report.
Steps where liability is denied by the compensator
6.12
(1) Where the compensator has denied liability in full and the claimant wishes to continue their claim, the claimant must start proceedings for a determination of liability. This means that the court will decide whether or not the accident occurred through the fault of the defendant and, if so, whether the compensator is liable in full or in part.
(2) Before starting proceedings the claimant may challenge the compensator’s denial via the Portal, by stating that the decision is challenged and setting out arguments in support of the challenge. The claimant may also upload further evidence to the Portal for the compensator to consider.
(3) In response to a challenge under (2) above the compensator may either maintain their denial or change their liability response on the Portal to any of the other options under paragraph 6.6(1). Section 6 of this Protocol will apply to any new liability response once provided on the Portal, save that there is no time limit for the compensator to provide the new response.
(4) There is no time limit for the step under (3), but the compensator should respond within a reasonable period.
(5) Where the claimant wishes to apply to the court for a determination of liability in a claim to which this Protocol applies, they must use the procedure set out in Practice Direction 27B.
(6) Paragraph 12.9 provides more information about the steps that a claimant must take if they wish to apply for a determination of liability.
(7) The Guide to Making a Claim provides more information about applying for a determination of liability.
6.13 Where a claimant makes an application for determination of liability and subject to paragraph 6.14(4), no further steps may be taken under this Protocol, until after the court has determined liability.
6.14
(1) Where after hearing an application for determination of liability, the court decides that the defendant is liable for the accident in full or in part, the court will stay the proceedings and direct that the partiesmust follow the steps in sections 7, 8 and 9 of this Protocol, unless the court considers that the value of the claim is likely to exceed the limit for the small claims track and for this Protocol.
(2) Where the court so directs, the claimant and the compensator must continue to use the Portal as set out in this Protocol.
(3) Information about the decision under paragraph (1) may be entered on the Portal by either party. This ensures that a decision in favour of the claimant is recorded, to allow the claimant to proceed to obtain a medical report. The parties in any linked claims identified under paragraph 5.8 will be notified of the court’s determination of liability in another linked claim.
(4) The parties may reach an agreement on liability after the claimant has made an application to determine liability. Such agreement must be in writing and may be in the form of a court order containing the points covered in paragraph (1) above. Paragraph (3) above applies equally to recording information about any written agreement reached or order made under this paragraph.
Where the compensator does not provide a response
6.15
(1) Where no response is provided by the compensator within the relevant response period in 6.2 or 6.3, liability will be taken to have been admitted in full by the compensator. The claim is then treated under this Protocol as one where liability has been admitted in full by the compensator and this Protocol will continue to apply.
(2) Paragraph 6.7 applies to any claim where liability is taken to have been admitted under paragraph (1) above.
Steps by the MIB or RTA insurer as compensator
6.16
(1) Where the MIB or its agent responds as compensator, the provisions of this section apply, save that the MIB or its agent in providing a response on liability has no authority to bind the defendant.
(2) Where an RTA insurer responds as compensator, the provisions of this section apply, save that the RTA insurer in providing a response on liability—
(a) has no authority to bind the defendant; and
(b) provides that response without prejudice to their contractual or statutory rights against the defendant or against other persons.
The defendant’s version of events
6.17
(1) Paragraph 6.6 provides that unless the compensator makes an admission of liability in full, their response on liability must set out the defendant’s version of events and provide any information in support.
(2) The compensator may upload photographs, sketch plans, witness statements, dashcam or other video clips or other documents or data to the Portal in support of their response on liability.
(3) Uploading under paragraph (2) can be done at any time up to the point where the compensator responds on the contents of the Court Pack created by the claimant under section 12. However, the parties should normally allow at least 10 days for new evidence to be considered before proceedings are started.
(4) The information uploaded under paragraph (2) will be used by the court to determine liability, so it is important that the compensator uploads any evidence on which they want to rely.
6.18
(1) Where the compensator provides the defendant’s version of events in the response, this must be supported by a statement of truth signed by the defendant.
(2) The signed statement of truth must be uploaded to the Portal at the same time as the compensator completes the response on liability, unless paragraph 6.19 applies.
(3) Annex A to this Protocol contains a standard form of statement of truth to be signed by the defendant which the compensator must use.
Witness summaries
6.19
(1) A witness summary may be used in place of the defendant’s version of events in the response, where the compensator has been unable for good reason to obtain a signed version of events from the defendant within the 30 day period for response.
(2) A witness summary is a summary of—
(a) the evidence, if known, which would otherwise be included in the defendant’s version of events; or
(b) if the evidence is not known, the matters about which the compensator wishes to question the defendant.
(3) The compensator must state when using a witness summary the reason why they have been unable to obtain a signed version of events from the defendant.
(4) In these circumstances only, the compensator must sign the statement of truth in the response in support of the matters stated above. The statement of truth must be signed by the person at the compensator with knowledge of the matters stated.
(5) Where the compensator uses a witness summary as provided in paragraph (a), they should still obtain the defendant’s version of events, supported by a statement of truth signed by the defendant and upload this onto the Portal as soon as possible. This step must be taken by the time the compensator responds on the contents of the Court Pack created by the claimant under section 12, failing which the defendant’s evidence will not be included in the Court Pack.
6.20
(1) Where the compensator makes an admission of liability in full or an admission of liability in part, it is expected that, in most cases, the medical expert will not need to see the defendant's version of events.
(2) In the limited cases where it is considered appropriate following an admission of liability in full, the response may set out the defendant’s version of events.
(3) Paragraphs 6.18 and 6.19 apply to the need for the defendant’s version of events under paragraph (2) to be supported by a statement of truth and the option of a witness summary.
Contributory negligence for failure to wear a seatbelt
6.21
(1) The law provides that where the claimant was not wearing a seatbelt, a percentage deduction may be made from their damages. Such a deduction may be made if the court agrees that the claimant’s failure to wear a seatbelt caused or contributed to their injuries, that is that the injuries would have been reduced or avoided altogether if the claimant had worn a seatbelt.
(2) The same arguments may be applied to drivers and front seat passengers and to rear seat passengers.
(3) The compensator may make an admission of liability, but subject to arguments about whether the claimant was wearing a seatbelt and, if not, the effect of this failure on the claimant’s injuries.
(4) Where the compensator argues that the claimant contributed to their injuries by not wearing a seatbelt, they must raise this argument in their response.
(5) Where the compensator raises this argument—
(a) section 7 will apply and the medical expert will be asked to comment in their report on the effect (if any) of any failure to wear a seatbelt on the claimant’s injuries;
(b) the compensator must not state the percentage by which they argue that the claimant contributed to their injuries until after the medical report has been disclosed to the compensator.
(Paragraphs 8.10 and 8.12 set out the steps the compensator must take if they wish to make a deduction from any offer in respect of any failure to wear a seatbelt.)
(6) Unless the claimant has already admitted not wearing a seatbelt, the compensator must follow the procedure in 6.20 above for providing the defendant’s version of events.
Interim payments
6.22
(1) Where—
(a) there has been an admission of liability in full or admission of liability in part by the compensator under paragraph 6.6(1)(a) or (b);
(b) the compensator is taken to have admitted liability by virtue of paragraph 6.15;
(c) the court has determined liability in favour of the claimant (in full or in part) and has directed that the parties continue the claim under this Protocol: or
(d) the compensator has admitted fault in full or in part, but has disputed that the accident caused any injury to the claimant under paragraph 6.6(1)(d),
the claimant may at any time request an interim payment to cover items of other protocol damages.
(2) Section 9 of this Protocol deals with how and when a request for an interim payment may be made.
Compensation Recovery Unit
6.23
(1) The compensator must notify the claim to the Compensation Recovery Unit before the end of the relevant response period in 6.2 or 6.3.
(2) Section 10 contains further information about the Compensation Recovery Unit.
Medical reports
Introduction
7.1
(1) This section explains—
(a) the type of medical report that the claimant should obtain;
(b) how the first medical report must be obtained;
(c) the information that must be given to the medical expert who provides the medical report.
(2) It should be noted that where the claim consists of, or includes, a claim for a whiplash injury, the law requires the claimant to obtain a medical report before any settlement offer can be made or accepted or any payment made for the whiplash element of the claim.
(3) There is no such requirement where there is no whiplash injury or for the non-whiplash part of any claim. However, a medical report will be required if the claimant wishes to start proceedings and rely on medical evidence. The compensator may still insist on seeing a report before any offer is made or accepted for such a claim.
(4) Offers can be made by either party and accepted without a medical report in non-whiplash injury cases, but this can only take place outside the Portal. Paragraph 8.15 explains the process in more detail.
7.2 This section applies to any claim made under this Protocol where—
(a) the compensator makes an admission of liability in full or admission of liability in part; or
(b) the compensator disputes that the accident caused any injury to the claimant, and the claimant has notified the compensator that they wish to continue their claim.
7.3
(1) An unrepresented claimant must use the Portal, which will give them access to MedCo, to obtain their fixed cost medical report.
(2) The medical expert will be supplied with the information provided by the claimant about their injuries at paragraph 5.12 above, but it is important that the claimant tells the medical expert about all their injuries. The medical expert will need to include this information in their report, which will form the basis of valuing the claim for injuries.
(3) The Guide to Making a Claim provides more information on obtaining a medical report.
First medical report
7.4
(1) Subject to paragraph 7.5, any first report obtained by the claimant must be a fixed cost medical report from an accredited medical expert who is instructed via a search of the online database of medical reporting organisations and medical experts held by MedCo (website at: www.medco.org.uk).
(2) Where the claim consists of or includes a claim for a whiplash injury, the claimant must obtain a fixed cost medical report as set out in paragraph (1) above.
(3) Where the claim does not include a claim for whiplash injury, the claimant should still obtain a medical report. If they decide to do so, it must be a fixed cost medical report.
(4) It is expected that only one medical report will be required.
7.5
(1) Where the claimant lives outside England and Wales, there is no requirement to obtain a fixed cost medical report via MedCo and paragraph 7.4 does not apply. The claimant may either—
(a) obtain a first medical report in accordance with paragraph (2) or (3) below;
(b) obtain a fixed cost medical report via MedCo where they choose to search against an address in England and Wales from which they can attend the medical examination; or
(c) seek assistance in obtaining a first medical report from the compensator.
(2) In a claim which consists of or includes a whiplash injury, the first report must be from a person who is recognised by the country in which they practise as—
(a) being a medical expert; and
(b) having the required qualifications for the purposes of diagnosis and prognosis of a whiplash injury.
(3) In a claim which does not include a whiplash injury, any first report obtained must be from a person who is recognised by the country in which they practise as being a medical expert.
Further medical reports
7.6
(1) A further medical report in addition to the report referred to in paragraph 7.4 or 7.5, 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;
(b) the first medical report recommends that further time is required before a prognosis of the claimant’s injuries can be determined;
(c) the claimant is receiving continuing treatment; or
(d) the claimant has not recovered as expected in the original prognosis.
(2) Paragraph 7.7 provides more information about the type of report that must be obtained where a claimant seeks a further report.
(3) Where a further medical report is not justified, the claimant may not be able to recover the fees paid for the further report.
(4) A further report may be obtained in accordance with paragraph (1) above at any time before the claim has settled, including after one or more offers have been made to settle the claim.
(5) Paragraph 8.2 below explains the circumstances in which the claimant will be asked when obtaining a further medical report if they wish to disclose the first report to the compensator.
7.7
(1)In any claim made under this Protocol and save where paragraph (4) applies, where the claimant obtains a further medical report after the first medical report, that report must also be a fixed cost medical report if the medical expert who provides the further report is—
(a) a Consultant Orthopaedic Surgeon;
(b) a Consultant in Accident and Emergency Medicine;
(c) a General Practitioner registered with the General Medical Council; or
(d) a Physiotherapist registered with the Health and Care Professions Council.
(2) These reports, and further reports obtained from medical experts not mentioned in paragraph (1)(a) to (d) above, are not obtained through MedCo. The Guide to Making a Claim gives more information on obtaining further medical reports.
(3) This paragraph does not limit the type of medical expert who can be instructed to provide a further report.
(4) This paragraph does not apply where the claimant lives outside England and Wales and chooses to obtain a further medical report outside England and Wales.
Medical reports – general
7.8
Where the claimant is unrepresented—
(1) the instructions to the medical expert for the first medical report are generated by the Portal once the claimant asks for the medical report, unless the claimant lives outside England and Wales and chooses to be examined outside England and Wales. The instructions from the Portal will automatically include the information required in paragraph 7.9 below. These instructions are not seen by the compensator.
(2) the instructions will confirm that the compensator will pay the cost of the first medical report.
(3) any request for a further medical report in addition to the report required under paragraph (1) above should be sent to the compensator, who must arrange and pay for the further report unless they object on the grounds that the further report is not justified under paragraph 7.6. Any such objection raised must be reasonable.
(4) The claimant has the option to obtain and pay for a further medical report themselves, provided that the claimant does so for one of the reasons set out in paragraph 7.6 .
(5) The compensator may not object under paragraph (3) above unless they are satisfied that the reason given for the request is not one of those listed in paragraph 7.6.
(6) Unless the compensator objects under paragraph (3) above, they must acknowledge the request for a further report through the Portal. Within 10 days of acknowledging the request the compensator must send the instructions to the medical expert to arrange for the further report and upload the instructions to the Portal as confirmation that they have been sent.
(7) Annex B to this Protocol contains a standard form of instruction to the medical expert for a further medical report, which the compensator must use.
7.9
(1) The instructions to be sent to the medical expert for the first medical report must—
(a) provide the medical expert with the claimant’s description of their injuries entered on the Portal;
(b) where there is a claim for whiplash injury,include the responses provided by the claimant under paragraph 5.12, as to whether they consider their injuries to be exceptionally severe or that any exceptional circumstances have had an impact on their pain, suffering and loss of amenity;
(c) tell the medical expert in accordance with paragraph 6.11 if the compensator disputes, and why they dispute, that the accident caused any injury to the claimant;
(d) tell the medical expert in accordance with paragraph 6.21if the compensator argues that the claimant contributed to their injuries by not wearing a seatbelt and if so, ask the expert to comment on the effect (if any) of any failure to wear a seatbelt on the claimant’s injuries; or
(e) include the defendant’s version of events in accordance with paragraph 6.20, where the compensator has admitted liability and has provided a different account.
(2) The information at paragraph (1)(b) is provided to enable the medical expert to consider whether there is any support for a claim for uplift.
(3) The information in paragraphs (1)(c) to (e) is provided only for the purpose of asking the medical expert to comment on the impact, if any, on diagnosis and prognosis (including whether or not the accident caused any injury) if—
(a) the claimant's account is found to be true; or
(b) the defendant's account is found to be true.
(4) The instructions given to the medical expert will be made available to the claimant via the Portal once sent.
Contents of the medical report – general
7.10
(1) In a claim made under this Protocol, it is expected that the medical expert will not need to see any medical records. Any review of medical records must be justified within the report.
(2) Where medical records have been reviewed the medical expert should identify within the report—
(a) the medical records that have been reviewed; and
(b) the medical records considered relevant to the claim.
(3) Copies of any medical records which the expert considers relevant to the claim must be provided by the expert when the report is sent to the claimant. Those extracts from the records must be included with the report when it is released to the compensator.
(4) Where medical records are needed by the medical expert and there is a charge for obtaining the records, that charge can be claimed as part of the claim for experts’ fees.
7.11 Any relevant photograph(s) of the injuries upon which the claimant intends to rely should be uploaded to the Portal to be sent with the medical report. Such photographs can be uploaded at any time before the medical report is sent to the compensator.
7.12 Where it is admitted or alleged that the claimant was not wearing a seatbelt, the medical report must indicate whether, in the medical expert’s opinion and on the balance of probabilities, the claimant’s injuries (or any part of them) would have been reduced or avoided altogether, had the claimant worn a seatbelt.
Uploading the medical report
7.13
(1) Where an unrepresented claimant obtains the first medical report through MedCo, the medical expert will upload the medical report onto the Portal.
(2) The medical expert will also complete the following details on the Portal–
(a) the prognosis for the claimant’s injuries;
(b) any recommendation to obtain a further report.
(3) In all other cases the report will be sent to the claimant or their representative, who must upload the medical report and the details set out in paragraph (2) above onto the Portal.
(4) Support for unrepresented claimants who are unable to use the Portal can be obtained from the Portal Support Centre.
Steps when the claimant receives a medical report from a medical expert
7.14
(1) The claimant must check the factual accuracy of any report before it is sent to the compensator. The facts set out in the medical report will be part of the basis on which the claim is valued and it is important these are correct. The claimant must check that all of the facts have been recorded in the medical report, including all injuries and any exceptional circumstances. The claimant should challenge the factual accuracy of the report if it is incorrect or incomplete.
(2) Once the medical report is sent to the compensator via the Portal, the facts will be taken to be agreed by the claimant. There will then be no further opportunity for the claimant to challenge the factual accuracy of the medical report.
(3) Where-
(a) the claimant has challenged the factual accuracy of the report by asking the medical expert to amend their report; and
(b) the medical expert has refused to make any amendment,
the claimant may (in these circumstances only) send the report, together with details of the challenge and any response, to the compensator and continue to argue that the report is incomplete or inaccurate.
(4)
(a) Where the claimant is unrepresented, the challenge and response under paragraph (3) above in respect of the first report are made via the Portal unless the claimant has obtained their first report outside England and Wales;
(b) Where—
(i) the claimant is represented; or
(ii) the challenge in respect of either a further report or a first report obtained outside England and Wales,
the challenge and response are made outside the Portal and the claimant must upload any details on which they intend to rely.
(5) Paragraph 8.2 explains when it is appropriate for the claimant to send their medical report to the compensator.
(6) The Guide to Making a Claim gives more information about challenging the factual accuracy of a report.
Valutation of the claim by the compensator and making offers to settle
Introduction
8.1
(1) This section explains—
(a) the steps both the claimant and the compensator must take to try to settle the claim;
(b) the information that the claimant must send to the compensator, before the compensator makes an offer to settle the claim;
(c) when the claimant should send the information to the compensator;
(d) the information that the compensator must provide when making an offer;
(e) the claimant’s options when considering the compensator’s offer;
(f) making counter offers;
(g) when the compensator may indicate that they dispute that the accident caused the injury; and
(h) the steps that the claimant may take if a settlement cannot be reached.
(2) Before starting proceedings, the claimant should make full use of the process in this section of the Protocol to try and settle their claim.
(3) Apart from paragraph 8.15, this section deals only with those cases where the claimant has obtained a medical report. Offers can be made by either party and accepted without a medical report for non-whiplash injuries, but this can only take place outside the Portal. Paragraph 8.15 explains how this can be done and the risks of doing so.
(4) The parties are reminded that court proceedings are a last resort. It is expected that the parties will try to negotiate settlement of claims without starting court proceedings.
(5) Paragraph 4.5 of this Protocol explains the circumstances in which the claimant may exit the Protocol where they reasonably believe the value of the overall claim is more than £10,000 or the value of the claim for damages for injury is more than £5,000.
Steps to be taken by the claimant to settle the claim
8.2
(1) Unless otherwise stated, all references to the medical report in this section are to—
(a) the fixed cost medical report required by paragraph 7.4 or 7.5; or
(b) a first medical report obtained by a claimant who lives outside England and Wales under paragraph 7.5.
(2) Where the claimant has obtained more than one medical report, the provisions of this paragraph apply to the fixed cost medical report required by paragraph 7.4 or 7.5 (or the first medical report required under paragraph 7.5) and any further medical report on which the claimant intends to rely.
(3) When the claimant is ready to settle the claim, including any claim for other protocol damages, the claimant must indicate on the Portal that they are ready to send the medical report to the compensator.
(4) The claimant must also ensure that all items of other protocol damages have been included in the online “List of Losses” on the Portal and that this is verified with a statement of truth, as set out in paragraph 8.3 below.
(5) The claimant must also have included any fees in the List of Losses.
(6) Once the claimant has completed the steps in paragraphs (3) to (5) above, the medical report and the List of Losses are sent to the compensator via the Portal.
(7) It is expected that in most cases the claimant should be ready to settle the claim once they have accepted the medical report or reports and completed any claim for other protocol damages.
(8) Where the claimant is not ready to settle the claim, they will indicate via the Portal that they wish to wait before considering settlement. At this point, the claimant is encouraged to authorise the release of the report to the compensator via the Portal, but is not obliged to do so.
(9) The claimant may also choose to release the medical report to the compensator via the Portal when they request a further medical report under paragraph 7.6 above. The release of the medical report under this paragraph or under paragraph (8) above does not signify that the claimant is ready to settle the claim.
(10) Where the claimant wishes to release the medical report to the compensator subject to challenge in accordance with paragraph 7.14(3) above, they must also send details of the challenge made and the medical expert’s response.
(11) Any medical records or photographs of the injuries uploaded to the Portal will be sent with the medical reports sent to the compensator.
8.3 List of Losses
(1)The List of Losses sets out the items claimed as other protocol damages and as fees. The form must be supported by a statement of truth signed by the claimant.
(2) Before signing the statement of truth, the claimant should make sure that all items of other protocol damages have been included. This includes making sure that—
(a) where losses have previously been claimed as ongoing, these are updated with correct final figures;
(b) where losses are still ongoing, the full sum expected is claimed;
(c) where interim payments have been made for specific items in full, these items are removed from the List of Losses.
(3) The claimant will not be able to add further items on the Portal, once they indicate they are ready to settle the claim.
(4) The claimant should also make sure that any fees have been included. Whilst there is an opportunity to add such items immediately after settlement of the claim, fees added late will not be included in any offer made by the compensator.
(5)Where the claimant’s legal representative elects to sign the statement of truth, they must enter their name as confirmation that they hold a List of Losses signed by the claimant.
(6)Where the statement of truth is completed by the Portal Support Centre on behalf of an unrepresented claimant, the Centre must tick the appropriate box as proof that they hold a List of Losses signed by the claimant authorising them to do so.
(7) Where the List of Losses is completed by an authorised representative on behalf of the claimant, the statement of truth must be signed by the claimant in accordance with paragraph 1.3(3). The authorised representative must tick the appropriate boxes as confirmation that they have uploaded the List of Losses including the statement of truth signed by the claimant.
8.4 Uplift in exceptional circumstances
(1) In a claim which consists of or includes a claim for whiplash injury or injuries, the claimant may argue that there are exceptional circumstances which allow the claimant to seek an amount (known as the “uplift”) greater than the tariff amount for the whiplash injury or injuries.
(2) The information provided by the claimant under paragraph 5.12 is provided to the medical expert for the purpose of considering whether there is any support for a claim for uplift.
(3) Where the claimant seeks an uplift from the compensator, the claimant must complete the necessary information on the Portal. This will include—
(a) explaining how either—
(i) their whiplash injury was exceptionally severe; or
(ii) their circumstances have had an impact on their pain, suffering and loss of amenity caused by the whiplash injury or injuries and if so, how they consider those circumstances were exceptional;
(b) confirming that the medical report supports the claim as set out or otherwise setting out the evidence relied upon to support the claim for uplift;
(c) sending the medical report and any other evidence relied upon to the compensator if they have not already done so; and
(d) stating the percentage uplift claimed up to a maximum of 20%.
(4) These questions must be answered again where the claimant provided information previously under paragraph 5.12 above. There may be good reasons why the answers provided following receipt of the medical report are different from answers given under paragraph 5.12 at an earlier date. The claimant may provide an explanation of any difference in their answers under paragraph (3) above.
(5) The uplift can only be claimed when the claimant sends the medical report and details of any claim for other protocol damages to the compensator under paragraph 8.2 above.
(6) the uplift can only be claimed or paid as a percentage of up to 20% of the tariff amount.
Information the compensator must receive from the claimant before making an offer to settle the claim
8.5
(1) There is a time limit for the compensator to make an offer (see paragraph 8.7 below). That time limit does not start to run until the claimant has provided the items in paragraph (2) below, which will enable the compensator to value the claim and make an offer to settle.
(2) The items which the compensator needs to have received from the claimant are—
(a) the fixed cost medical report, or the first medical report obtained by a claimant who lives outside England and Wales;
(b) any other medical reports the claimant relies upon in support of their claim;
(c) the List of Losses with details of any claim for other protocol damages and for fees;
(d) documents in support of any claim for other protocol damages, unless no documents would be available; and
(e) documents in support of any claim for fees, including—
(i) invoices for the cost of any medical reports that have been obtained, which the compensator has not already paid for;
(ii) invoices for the fees of any other experts or for obtaining medical records;
(iii) invoices or receipts for any other fees claimed.
(3) The claimant must send the information in paragraph (2) above to the compensator through the Portal.
Supporting documents
8.6
(1) The claimant is reminded that—
(a) all items of other protocol damages must have been added on the Portal by the time the claimant sends the medical report or reports to the compensator (except where the claimant indicates under paragraph 8.2(8) above that they wish to wait before considering settlement); and
(b) the claimant must upload documents to support any claim for other protocol damages, unless no documents would be available.
(2) The claimant should be aware that where documents are not sent in support of any item of other protocol damages, the compensator may not be in a position to make any offer for that item.
(3) The claimant may also send further documents in support of any counter offer under paragraph 8.11.
Compensator’s offer – time limits
8.7
(1) The compensator must make an offer to settle the claim, unless they notify the claimant through the Portal that—
(a) they considerthat the value of the overall claim is more than £10,000 or the value of the claim for damages for injury is more than £5,000; or
(b) they dispute (or continue to dispute under paragraph 6.6(1)(d)) that the accident caused any injury to the claimant.
(Paragraph 8.9 deals with the steps that the compensator must take where, on receipt of the medical report, the compensator wishes to dispute or continue to dispute that the accident caused any injury to the claimant.)
(2) Subject to the exceptions in paragraph (1) above, an offer to settle must be made through the Portal as soon as possible and in any event within a maximum of 20 days of receiving the information in paragraph 8.5.
(3) Where the claimant does not send documents in support or one or more items of other protocol damages, the compensator must still make an offer within the same period for the damages for injury and any items of other protocol damages for which documents in support have been sent or for which documents would not be available.
Claims above value limit
8.8
(1) Where, instead of making an offer, the compensator notifies the claimant through the Portal that they consider that the value of the overall claim is more than £10,000 or of the claim for damages for injury is more than £5,000, the claim will be dealt with outside this Protocol.
(2) The Guide to Making a Claim gives more information about the steps available to a claimant in these circumstances.
(3) The claimant should also consider seeking advice in these circumstances.
Dispute that accident caused injury
8.9
(1) On receiving the medical report, the compensator may decide that there is a dispute whether the accident caused any injury. This includes cases where the compensator has previously admitted liability under paragraph 6.6(1)(a) or (b) or disputed that the accident caused any injury under paragraph 6.6(1)(d).
(2) Where the compensator wishes to dispute (or continue to dispute) that the accident caused any injury, they must notify the claimant through the Portal within 20 days of receiving the information in paragraph 8.5 and must give reasons for doing so.
(3) At the same time the compensator may make a final settlement offer through the Portal for the other protocol damages claimed.
(4) Unless an offer is made under paragraph (3) above and accepted by the claimant in full and final settlement of all claims for damages for injury and for other protocol damages, the claim will be treated as a dispute that the accident caused any injury and will be dealt with outside this Protocol.
(5) The claimant should consider seeking advice in these circumstances.
(6) Paragraphs (1) to (4) do not apply to any claim where liability is taken to be admitted under paragraph 6.15.
8.9A
(1) Where the compensator—
(a) disputes in their response on liability that the accident caused any injury under paragraph 6.6(1)(d); but
(b) does not notify the claimant under paragraph 8.9(2) within 20 days that they continue to dispute that the accident caused any injury,
the claim is then treated under this Protocol as one where there has been an admission of liability in full or admission of liability in part (as appropriate) by the compensator and this Protocol will continue to apply.
(2) Paragraph (1) above includes any claim where, after disputing that the accident caused any injury under paragraph 6.6(1)(d), the compensator makes an offer under this section to include damages for injury.
(3) Where paragraph (1) applies the Portal will generate a new Compensator’s Response form to replace the previous version, showing the admission of liability in full or admission of liability in part.
(4) Paragraph 6.7 applies to any claim where liability is taken to have been admitted under paragraph (1) above.
Contributory negligence for failure to wear a seatbelt
8.10 Where the compensator argues in their response that the claimant contributed to their injuries by not wearing a seatbelt under paragraph 6.21 above—
(a) The compensator must consider the opinion of the medical expert as to whether the claimant’s injuries would have been reduced or avoided altogether, had the claimant worn a seatbelt;
(b) where the medical expert’s opinion supports the argument, the compensator must—
(i) state in their offer under paragraph 8.11 below the percentage reduction (if any) that is being applied to their offer; and
(ii) follow the procedure in paragraph 8.12(3).
Compensator’s offer – information to be included in the offer to settle
8.11
(1) A compensator’s offer to settle under paragraph 8.7 above is a single offer for all parts of the claim but must set out—
(a) the fixed tariff amount if any;
(b) the offer for any damages for non-whiplash injuries;
(c) the offer for each item of other protocol damages, stating—
(i) whether each item is accepted; and if not
(ii) an explanation why any item is disputed;
(d) the amount of any deductions to be made under paragraphs 8.12(2)-(6) below.
(2) The compensator’s offer must be supported by a statement of truth.
(3) The explanations provided under paragraph (1)(c)(ii) above will be included in the Court Valuation Form created on the Portal as the compensator’s formal counter schedule in the event that court proceedings are started.
(see paragraphs 11.3(2) and 11.9(1) for further information on creation of the Court Valuation Form.)
(3A) The compensator is asked in all cases whether they agree there is a whiplash injury. This determines whether a tariff amount is then included in the overall offer.
(4) The tariff amounts for whiplash injuries and (where applicable) minor psychological injuries are fixed by law and the parties may not request or offer more or less than the tariff amount. The compensator’s offer must show the tariff selected and include the appropriate tariff amount, selected from the drop down box provided. Damages for other injuries are not fixed.
(4A) Where the compensator selects the higher tariff for whiplash injuries and minor psychological injuries, the compensator cannot change from that tariff to the lower tariff for whiplash injuries only in any subsequent offer.
(5) If the claimant has claimed an uplift on the tariff amount, the compensator’s offer must state the percentage and amount (if any) offered in respect of the uplift.
(6) The compensator may make an overall offer which is higher than the total of the amounts proposed for each part of the claim.
Deductions from offers – information to be included
8.12
(1) Any deductions from the offer to be made must be dealt with in the sequence set out in the paragraphs below.
(2) Where the compensator has admitted liability in part, the offer must set out the proposed or agreed deductionfrom the amount of damages to reflect the liability arguments.
(3) where the compensator applies a percentage deduction under paragraph 8.10 above, to reflect the effect of the claimant’s failure to wear a seatbelt, the offer must set out the proposed deduction which must only be applied to the damages for injury, any sum for uplift and items of other damages – injury related.
(4) The compensator must state the total value of the offer less any deductions under paragraphs (2) and (3) above.
(5) The compensator must state the amount of any deduction for recoverable benefits. Where a certificate of recoverable benefits is available, the compensator must also provide a copy of the certificate (the underlined terms are defined in paragraph 10.10).
(6) The compensator must also state the amount of any deduction for interim payments already paid to the claimant (interim payments are dealt with in section 9 of this Protocol).
Compensator’s offer in respect of claim for fees
8.13
(1) At the same time as the offer to settle, the compensator must also make a separate offer in respect of any claim for fees.
(2) Where the fees offer is to pay less than the full amount claimed, the compensator must set out the reasons why they dispute any item of fees or the sum claimed for that item.
(3) Any deduction under paragraphs 8.12(2) or (3) above must not be applied to the claim for fees.
(4) The fees offer will be disclosed to the claimant at the same time as the offer to settle the claim is sent, but is not available for the claimant to accept or reject until the parties have agreed to settle the claim for damages. Where no such agreement is reached and the claimant wishes to start court proceedings to assess the value of the claim, the claim for fees will be included in the proceedings, so that the fees may be assessed by the court if not agreed.
(Paragraphs 10.5 to 10.6 set out more information as to the compensator’s right to dispute certain fees.)
The claimant’s options on receipt of an offer
8.14
(1) On receipt of an offer to settle, the claimant may select one of the following options from the Portal—
(a) accept the offer (see paragraph 10.2);
(b) reject the offer (see paragraph 8.19);
(c) make a counter offer of their own (see paragraph 8.17); or
(d) decide to put the offer “on hold” whilst they wait for developments in their claim. This includes waiting to see if their injuries resolve or improve as predicted in the medical report.
(2) Where the claimant decides to put an offer on hold under paragraph (1)(d), the claimant can at any later time accept or reject the offer (unless the offer has been withdrawn under paragraph 8.18) or make a counter offer through the Portal.
(3) Each party can make up to 3 offers or counter offers in total through the Portal. All offers and counter offers must be supported by a statement of truth. It is expected that each party should respond to offers or counter offers from the other within a maximum of 10 days.
(The parties are encouraged to negotiate rather than start court proceedings.)
(3A) Save where paragraph (3B) applies, the claimant is asked in all cases whether they say there is a whiplash injury. This determines whether a tariff amount is then included in the claimant’s counter offer.
(3B) Where the parties have agreed in previous offers on whether or not there is a whiplash injury, the parties will not be asked to change that agreement.
(4) Where the claimant or the compensator makes an offer in a claim for whiplash injury, that offer must include the appropriate tariff amount, selected from the drop down box provided.
(4A) Where the compensator has selected the higher tariff for whiplash injuries and minor psychological injuries, the claimant will not be able to change from that tariff to the lower tariff for whiplash injuries only in any offer.
(5) The claimant may also add further documents in support of any counter offer using the Portal.
(6) Where the details of an offer arecompleted by an authorised representative on behalf of the claimant, the statement of truth must be signed by the claimant in accordance with paragraph 1.3(3). The authorised representative must tick the appropriate boxes as confirmation that they have uploaded the Settlement Offer Form including the statement of truth signed by the claimant.
Making or accepting an offer without a medical report
8.15
(1) In claims which consist of or include a whiplash injury, the parties can only make an offer, pay or accept a payment for the whiplash injury if the claimant has first disclosed a medical report complying with paragraph 7.4. The process for those offers on the Portal is as set out in paragraphs 8.2 to 8.14 above.
(2) Offers can be made by either party and accepted without a medical report for non-whiplash injuries, but this can only take place outside the process set out at paragraphs 8.2 to 8.14 above.
(3) Such offers can be made on the Portal only by using the message facility. This means that the Portal will not be able to provide any on-screen prompts or other facilities to handle such offers.
(4) Any claimant considering whether to make or accept an offer without a medical report under paragraph (2) above needs to consider—
(a) whether they have claimed for all their other protocol damages and whether the offer takes account of those other protocol damages;
(b) whether the offer includes any fees which could be claimed under paragraph 8.13 above;
(c) the risk that without a medical report, their claim for damages for injury may not be accurately valued.
(5) The claimant’s attention is also drawn to the help available on the Portal where court proceedings have to be started, either to assess the value of the claim or to deal with non-payment of any agreed settlement. This includes creating the Court Pack and court form needed to start court proceedings; such facilities will not be available to help the claimant in cases where an offer is made or accepted without a medical report.
Further medical reports
8.16
(1)Where the claimant obtains a further medical report after one or more offers have been made, the claimant needs to follow the steps set out in paragraphs 8.2 to 8.14 above in respect of that report, sending the report to the compensator and dealing with the claim for other protocol damages.
(2) Once the further medical report is sent to the compensator, the compensator must consider whether to make a further offer to settle under paragraph 8.7.
Offers and counter-offers
8.17
(1) In this paragraph and paragraph 8.18, the term “offer” refers to any offer or counter-offer.
(2) The compensator may at any point in the process in this section make a further, higher offer, but may not offer less than their previous offer.
(3) Where the claimant makes an offer, the claimant can make a further, lower offer at any point in the process in this section, but may not offer to accept more than their previous offer.
(4) Any further offer under paragraph (2) or (3) above replaces the party’s previous offer, which is no longer available for acceptance. The compensator’s highest offer and the claimant’s lowest offer therefore stay on the Portal and may be accepted by the other party at any time, subject to paragraph 8.18 below.
(5) An agreement under paragraph 6.8 in which the claimant accepts any proposal for a percentage of liability in part means that a deduction has to be made in any offers or counter offers to take this percentage into account.
Withdrawal of offers or counter-offers
8.18
(1) The claimant or the compensator may not withdraw an offer until 10 days have passed since the date on which the offer was made, but may otherwise withdraw an offer at any time. Paragraph (7) below explains when an offer can be withdrawn on the Portal but does not restrict the right to withdraw in this paragraph.
(2) An offer once withdrawn is no longer available for acceptance.
(3) The effect of withdrawing an offer is to leave the party doing so with no offer on the Portal.
(4) Where a party withdraws an offer, they may, subject to paragraph (5), replace that offer with a new offer. If the offer is withdrawn and the new offer made—
(a) before the other party has made their next offer under paragraph 8.14, the new offer counts for the purposes of paragraph 8.14(3) as the same number offer as the withdrawn offer;
(b) after the other party has made their next offer under paragraph 8.14, the new offer will count for the purposes of paragraph 8.14(3) as their next offer.
(5) Where the compensator withdraws their offer after the claimant has made their third and final offer, the compensator may not make a new offer on the Portal.
(6) The effect of the compensator withdrawing an offer and not replacing it with a new offer (or not being able to do so) is also to remove any comments made by the compensator on the losses claimed. These comments will not then be available for the court to consider in any proceedings started by the claimant.
(7) Either party may withdraw an offer by using the “withdraw offer” facility on the Portal at any time until the Portal creates the Court Valuation Form. The Portal will warn the parties when this point is reached.
(8) Any withdrawal after the point identified under paragraph (7) above must be made by giving notice in writing to the other party, including by electronic means whether by using the message facility on the Portal or otherwise. Such notice is effective at the time it is received by the other party.
(Paragraphs 11.3 and 11.9 explain when the Portal creates the Court Valuation Form.)
Rejection/late acceptance of offers or failure to make an offer
8.19
(1) Where the claimant rejects an offer to settle in a claim to which this Protocol applies and does not make any counter-offer, the claimant may start court proceedings to assess the value of the claim.
(2) Where the compensator does not make an offer within the time specified in paragraph 8.7, the claimant may start court proceedings, but not until at least 20 days after sending the information required in paragraph 8.5.
(3) It is expected that the parties will use the offer and counter offer procedure on the Portal to try and settle the claim before starting proceedings under this paragraph.
(4) An offer which has been rejected may still be accepted at a later date, unless it has been withdrawn in accordance with paragraph 8.18, by using the “accept rejected offer” facility on the Portal at any time until the Portal creates the Court Valuation Form. The Portal will warn the parties when this point is reached.
(5) Any acceptance after the point identified under paragraph (4) above must be made by giving notice in writing to the other party, including by electronic means whether by using the message facility on the Portal or otherwise. Such notice is effective at the time it is sent to the other party.
(6) Before the claimant starts proceedings, they will be asked to review and update their comments on disputed items of losses. The final version of these comments will be included in the documents for court.
(7) Where the claimant wishes to start proceedings under this paragraph, they must—
(a) first follow the procedure set out in section 11 of this Protocol; and
(b) subject to that section, use the procedure set out in Practice Direction 27B.
(8) Nothing in this paragraph prevents a claimant from starting court proceedings if they need to do so for limitation purposes, whether under paragraph 5.6 of this Protocol or otherwise.
Locking mechanism on the Portal
8.20
(1) The Portal has a locking mechanism, which means that one party cannot go into the claim and take a step when the other party is already taking a step in the claim. In that situation the Portal will display a message saying “Lock information: [your claim] is currently being modified by [name of other party]”.
(2) Where a party receives the “lock information” message on the Portal when they wish to accept or withdraw an offer, they must wait to accept or withdraw the offer via the Portal when it is unlocked. The party cannot use any other communication to accept or withdraw the offer.
(3) Where the party finds that the offer has been withdrawn after the system has been unlocked, they cannot then accept the offer.
(4) Where the party finds that the offer has been accepted after the system has been unlocked, they cannot then withdraw the offer.
Interim payments
Introduction
9.1 This section explains—
(a) what an interim payment is;
(b) when and how the claimant may ask the compensator for an interim payment;
(c) the steps the compensator must take if an interim payment is made; and
(d) the steps the claimant may take if the compensator either refuses to make an interim payment or does not respond.
Interim payments
9.2
(1) Where any of the options in paragraph 6.22 applies and subject to paragraph 9.3 below, the claimant may at any time request an interim payment to cover items of other protocol damages.
(2) At any point following receipt of the SCNF, the compensator may voluntarily make an interim payment to cover items of other protocol damages.
(3) The compensator can make a voluntary interim payment to cover specific items or a general interim payment.
(4) When making a voluntary interim payment, the compensator must notify the claimant through the Portal of—
(a) the payment; and
(b) if the payment is for specific items of other protocol damages, which items the payment is intended to cover.
9.3
(1) Where the claimant makes a request for interim payment, it must be made through the Portal by—
(a) stating which items are being claimed for and the amount claimed; and
(b) providing the documents needed to support those items by uploading them on the Portal, in the same way as set out in paragraph 8.6.
(2) The Portal creates an Interim Request Form following this request, for use where the claimant wishes to start proceedings under paragraph 9.6(1) below.
(3)
(a) The claimant may only make one interim payment request at any time, but may update an existing request to include additional items either before or after the compensator has responded to the request or the time for response has passed.
(b) Where the claimant updates an interim payment request, paragraphs 9.4 to 9.6 apply to the updated request and no longer apply to the original request.
9.4
(1) The compensator must respond to any interim payment request within15 days.
(2) The compensator can make an interim payment to cover specific items or a general interim payment.
(3) Where the interim payment is stated to cover specific items in full, those items are regarded as satisfied and are then removed from the claim. The court cannot order such an interim payment to be repaid.
(4) An interim payment intended to cover specific items can only be made for the sums as claimed in full. Any payment agreed or awarded for less than the sum claimed for that item will be treated as a general interim payment under paragraph (5) below.
(5) Where a general interim payment is made, the claim remains as stated and the payment will be taken into account at the conclusion of the claim, to be offset, first, against other protocol damages. The court can order a general interim payment to be repaid, see paragraph (7) below.
(6) Unless otherwise stated, the making of a general interim payment does not represent an admission either of liability or of any specific item of damages.
(7) If the court is asked to decide on the other protocol damages that should be paid to the claimant, the court can order a general interim payment made under paragraph (4) above to be repaid.
(8) An agreement under paragraph 6.8 in which the claimant accepts any proposal for a percentage of liability in part means that any interim payment will have to be reduced to take this percentage into account.
(9) When making an interim payment the compensator must deduct any recoverable benefits from relevant damages. An explanation of the benefits position is at paragraphs 10.10 and 10.11.
9.5
(1) Unless paragraph (2) applies, where the compensator has agreed to make an interim payment, this must be paid within 10 days of the date of such agreement.
(2) Where the compensator agrees to make an interim payment, but does not yet have a certificate of recoverable benefits (which is defined in paragraph 10.10(1)(b)) or does not have one that will remain in force for at least 10 days, the compensator must—
(a) apply for a certificate of recoverable benefits as soon as possible;
(b) notify the claimant that they have done so; and
(c) make the interim payment no more than 30 days from the date of agreement.
(3) Other protocol damages can include items caused by the claimant’s injury and other items such as protocol vehicle costs or other damage to property. In this Protocol, these are called other damages – injury related and other damages – property. Where the interim payment is for items that are other damages – property, the compensator does not need to wait for a certificate of recoverable benefits before making a payment in accordance with paragraph (1).
Disputes as to interim payments
9.6
(1) Where the claimant has requested an interim payment for other protocol damages but the compensator has either—
(a) disputed the entitlement to an interim payment; or
(b) failed to agree to pay the sum requested within the period specified in paragraph 9.4(1),
the claimant has the option to start proceedings and apply to the court for an interim payment in those proceedings.
(1A) The claimant may before starting court proceedings update their interim payment request under paragraph 9.3(3) above.
(2) Where the parties have reached an agreement, recorded on the Portal, on an interim payment for other protocol damages but the compensator has failed to pay within the relevant period specified in paragraph 9.5(1) and (2), the claimant has the option to start proceedings and apply to the court for an order for payment.
(3) A claimant who wishes to start proceedings in a claim to which this Protocol applies for either—
(a) an interim payment under paragraph (1) above; or
(b) an order for payment of an agreed interim payment under paragraph (2) above,
must use the procedure set out in Practice Direction 27B.
(4) Paragraph 12.12 of this Protocol provides more information about the steps that a claimant must take if they wish to start proceedings for either an interim payment or an order for payment as appropriate.
9.7
(1) Where a claimant starts proceedings under paragraph 9.6 for either an interim payment or for an order for payment of an agreed interim payment, the claimant and the compensator must continue to follow the steps under this Protocol.
(2) After determining an application for an interim payment or making an order for payment, the court will stay the proceedings.
Acceptance and final payment
Introduction
10.1
(1) This section explains—
(a) the steps that the claimant and compensator should take when an offer is accepted; and
(b) when the compensator is required by law to make deductions from the damages payable to the claimant, where the claimant has been in receipt of certain state benefits between the date of the accident and the date of settlement of the claim.
(2) Terms underlined in this section (and in paragraph 8.12) relate to the system for reclaiming certain state benefits paid to the claimant and are explained in paragraph 10.10.
Acceptance by claimant
10.2
(1) Subject to paragraph (2) below, where the claimant accepts an offer to settle, the compensator must pay the sum offered to the claimant within 10 daysof the date of acceptance of the offer on the Portal.
(2) Where the claimant accepts an offer to settle, but the compensator does not yet have a certificate of recoverable benefits or does not have one that will remain in force for at least 10 days, the compensator—
(a) should apply for a certificate of recoverable benefits as soon as possible and notify the claimant that they have done so; and
(b) must pay the sum offered to the claimant within no more than 30 days of the date of acceptance of the offer on the Portal.
(3) The sum paid to the claimant by the compensator may be reduced to take account of—
(a) any interim payments already made;
(b) any deductible amount repayable to the Compensation Recovery Unit (“CRU”); and
(c) paragraph 10.10explains what the deductible amount is and when it is repayable.
(4) The compensator must tell the Portal that the claim has been settled.
Acceptance by compensator of offer by claimant
10.3
(1) Subject to paragraph (2) below, where the compensator accepts the claimant’s offer to settle, the compensator must pay the sum which the claimant has offered to accept within 10 days of the date of acceptance of the offer on the Portal.
(2) Where the compensator accepts the claimant’s offer to settle, but does not yet have a certificate of recoverable benefits or does not have one that will remain in force for at least 10 days, the compensator—
(a) should apply for a certificate of recoverable benefits as soon as possible and notify the claimant that they have done so; and
(b) must pay the sum which the claimant has offered to accept within no more than 30 days of the date of acceptance of the offer on the Portal.
(3) The sum paid to the claimant by the compensator may be reduced to take account of—
(a) interim payments already made;
(b) any deductible amount repayable to the CRU; and
(c) paragraph 10.10explains what the deductible amount is and when it is repayable.
(4) The compensator must tell the Portal that the claim has been settled.
Non-payment by the compensator
10.4
(1)Where the parties have reached an agreement, recorded on the Portal, on the amount of damages payable at the end of this Protocol,but the compensator has failed to pay within the relevant period specified in this section, the claimant has the option to start proceedings and apply to the court for an order for payment.
(2) Where the claimant also has a claim for fees, the relevant period for the purposes of starting proceedings is the later of-
(a) the relevant period under paragraph 10.2 or 10.3 above; or
(b) the 10 days for payment where agreement is reached on the claim for fees, under paragraph 10.7(5) below.
(3) A claimant who wishes to start proceedings for an order for payment in a claim to which this Protocol applies must use the procedure set out in Practice Direction 27B.
(4) Paragraph 12.12 of this Protocol provides more information about the steps that a claimant must take if they wish to start proceedings for an order for payment.
Medical report fees and other fees
10.5
(1) This paragraph summarises who arranges and pays the fees for further medical reports.
(2) Where the claimant is represented, the claimant’s representative will be responsible for arranging the provision of and payment for any further medical reports required.
(3) Where the claimant is unrepresented, the compensator pays for the first medical report. Paragraph 7.8 provides that the compensator must pay for any further medical report requested by the claimant, subject to limited rights in that paragraph to object.
10.6
(1)This paragraph and paragraph 10.7 explain how the claimant can recover any fees from the compensator, at the settlement of the claim.
(2) Where the compensator has already paid the fees for the medical report or reports as required under paragraph 7.8, nothing in this paragraph permits the compensator to recover those payments from the claimant.
(3) Where the claimant incurs the fees for more than one medical report—
(a) the compensator may refuse to pay; or
(b) the court may refuse to allow,
the fees for any report which was not justified, or the fees for any report which are not reasonable or proportionate in amount.
(Paragraphs 7.4 and 7.6 explain the circumstances in which the fees for a medical report are justified.)
(4) Where the claimant incurs any other fees apart from court fees—
(a) the compensator may refuse to pay; or
(b) the court may refuse to allow,
any fee which is not reasonably incurred or any amount which is not considered reasonable or proportionate.
(5) Where the compensator refuses to pay all or part of any item of fees, they must explain their reasons for doing so to the claimant.
(6) The explanation provided under paragraph (5) above will be included in the Court Valuation Form created on the Portal as the compensator’s formal response in the event that court proceedings are started.
(Paragraphs 11.3(2) and 11.9(1) provide further information on creation of the Court Valuation Form.)
(7) Where the claimant pays court fees, the compensator must pay any court fee incurred at the end of the claim, unless the court has ordered otherwise.
10.7
(1) Where the claim has settled under paragraph 10.2 or 10.3 above and there is a claim for fees, the claimant will first be asked to add any further fees incurred since the original claim for fees.
(2) The process in paragraph (1) above will apply even if the claimant did not include any claim for fees under paragraph 8.2(5).
(3) After the step in paragraph (1), the claimant may choose one of the following options:
(a) conclude the claim, if there is no claimfor fees;
(b) accept the offer, if no fees have been added under paragraph (1) and the compensator has either—
(i) already offered to pay the original claim for fees in full; or
(ii) offered to pay part of the claim for fees and the claimant wishes to accept the offer;
(c) Make a counter offer to the compensator if either—
(i) the claimant has added fees under paragraph (1); or
(ii) the compensator has offered to pay part of the claimfor fees; or
(d) reject any offer to pay part of the claim for fees.
(4) Where the compensator receives a counter offer or a claim for further fees incurred, they must consider whether to accept the counter offer or claim, or to make a further offer for fees.
(5) Where agreement is reached on the claim for fees, the compensator must pay the agreed sum within 10 days.
(6) Where the compensator has failed to pay the agreed sum within 10 days, the claimant has the option to start proceedings using the procedure set out in paragraph 10.4 above.
(7) After choosing any option apart from paragraphs (3)(a) or (b), the claimant may at any point start court proceedings.
(8) A claimant who wishes to start court proceedings to recover any disputed fees in a claim to which this Protocol applies must use the procedure set out in Practice Direction 27B.
(9) Paragraph 12.12 of this Protocol provides more information about the steps that a claimant must take if they wish to start proceedings to recover any disputed fees.
(10) The claimant should also consider seeking advice in these circumstances.
Method of payment
10.8
(1) The method of payment is to be agreed between the claimant and the compensator.
(2) Where the claim for fees includes fees paid or payable by the claimant’s representative, the fees should be paid in any event to the representative.
The effect of settling the claim
10.9 Settlement of the claim under paragraph 10.2 or 10.3 represents final settlement of all claims for damages for injury and for other protocol damages but does not prevent the claimant from pursuing any claim for non-protocol vehicle costs arising from the same accident outside this Protocol.
Recoverable benefits and CRU
10.10
(1) In this Protocol—
(a) “CRU” means the Compensation Recovery Unit, which is part of the Department for Work and Pensions and is responsible for recovering social security benefits in claims for personal injury;
(b) “Certificate of recoverable benefits” means the certificate issued by the CRU to specify the benefits to be deducted from any damages and repaid under social security legislation; and
(c) “deductible amount” means any benefits or lump sum payment shown in the certificate of recoverable benefits, which the compensator is entitled to deduct in accordance with social security legislation.
(2) The compensator is required by law to notify an injury claim to the CRU and to obtain a certificate of recoverable benefits before making a payment.
(3) Certain benefits shown in the certificate of recoverable benefits must be deducted from certain types of payment for damages. Together, those benefits are known as the deductible amount.
(4) The certificate of recoverable benefits has to be valid at the time of payment and is valid only for a limited period, after which it needs to be renewed. The CRU is entitled to take up to 4 weeks from receiving a request to issue a certificate of recoverable benefits.
(5) The compensator should notify the claim to the CRU as soon as practicable after the claim is notified to the compensator.
(6) Where the compensator has obtained a certificate of recoverable benefits by the time an offer is made under paragraph 8.11, the offer must state the amount of any deductible amount, the name of the benefit and the item of damages from which it is deducted.
(7) Where the compensator does not have a valid certificate of recoverable benefits at the time an offer is due, they must—
(a) make an offer which is expressly subject to obtaining a valid certificate of recoverable benefits; and
(b) not more than 5 days after receiving a valid certificate of recoverable benefits, disclose that to the claimant and explain whether any deductions are needed from the sum offered.
(8) Paragraph (9) applies where, at the date settlement is agreed, the compensator does not have a certificate of recoverable benefits that will remain in force for at least 10 days.
(9)The compensator should apply for a fresh certificate of recoverable benefits as soon as possible, notify the claimant that they have done so and must pay the amounts set out in paragraph 10.2 or 10.3 as appropriate within 30 days of the date of agreement.
10.11 The deductible amount may only be deducted from the appropriate items of other protocol damages and the compensator must tell the claimant—
(a) the gross amount of the offer, that is the amount of damages offered less any deduction for contributory fault but before any other deductions;
(b) the amount in each case of benefits deducted from each item of damages;
(c) whether (in the case of an offer for other protocol damages alone under paragraph 8.9(3) only) the deduction reduces the damages offered to nil.
Claims for non-protocol vehicle costs
Introduction
11.1
(1) Claims for non-protocol vehicle costs are handled outside the previous sections of this Protocol.
(2) However, where the parties have been unable to settle the portal claim (see paragraph 11.2 below) under section 8 and the claimant wishes to start court proceedings to ask the court to assess the value of the portal claim, the court must be informed about all claims brought in the claimant’s name that are still in dispute. This includes any claim for non-protocol vehicle costs which has not been settled.
(3) This section sets out the procedure that must be followed to ensure that the court has the information it needs about all parts of the claim, before proceedings are started.
(4) The procedure must be completed before the claimant can generate the Court Pack under section 12 of this Protocol. Failure to provide information under this section may mean that any claim for non-protocol vehicle costs is not considered by the court and the claimant's right to bring any such claim may be affected.
Including the claim for non-protocol vehicle costs
11.2 In this section, the term “portal claim”means the claim for damages for injury and other protocol damages under this Protocol.
11.3
(1) Subject to paragraphs (2) and (3), where—
(a) the parties have been unable to agree settlement of the portal claim;
(b) the claimant wishes to start court proceedings to assess the value of the portal claim; and
(c) there is a claim for non-protocol vehicle costs being dealt with by another business or organisation separately from the portal claim,
the claimant must first follow the procedure set out in this section.
(2) Where the claimant is not the driver or owner of the vehicle in which they were injured, the claimant will have no claim for non-protocol vehicle costs and the rest of section 11 of this Protocol will not apply. The Portal will create the Court Valuation Form used in proceedings once the claimant selects the “go to court” button.
(3) Nothing in this section prevents a claimant from starting court proceedings if they need to do so for limitation purposes.
(4) Paragraph 6.7 of this Protocol provides that where the claimant starts proceedings to assess the value of their portal claim, any admission made in the Protocol is binding to the extent of all claims made in the proceedings. For the avoidance of doubt this will include any claim for non-protocol vehicle costs added under this section.
(5) For the purposes of this paragraph, “owner” means the person by whom a vehicle is being kept and includes the person to whom a vehicle is leased or hired at the relevant time.
11.4 The steps required under this section must be taken before the Court Pack is prepared under section 12.
11.5
(1) The claimant must first set out on the Portal whether there is any claim for non-protocol vehicle costs.
(2) The questions on the Portal relating to non-protocol vehicle costs are intended to help the claimant to make the necessary enquiries, to obtain the information needed in paragraph (1).
(3) It is the claimant’s responsibility to obtain the information and to satisfy themselves that the information provided is accurate.
(4) Support for unrepresented claimants who are unable to use the Portal can be obtained from the Portal Support Centre.
11.6
(1) Where—
(a) the claim for non-protocol vehicle costs is added to the portal claim under paragraph 11.5 above; and
(b) following the step in (a), the claimant reasonably believes as a result that the overall value of the claim is more than £10,000,
the claimant may notify the compensator that this Protocol no longer applies to the claim.
(2) The Guide to Making a Claim provides further information on valuing the portal claim.
(3) The claimant should also consider obtaining advice in these circumstances.
Non-protocol vehicle costs (“NVC”) claim document
11.7
(1) Unless paragraph 11.6 applies, the claimant must also complete the non-protocol vehicle costs claim document (referred to in this paragraph as “the NVC claim document”), which sets out the information and documents which the court and the compensator are likely to need in respect of the claim for non-protocol vehicle costs.
(2) Annex C to this Protocol contains the standard form of NVC claim document which the claimant must use.
(3) The NVC claim document must be signed by the claimant with a statement of truth.
(4) The claimant must upload the signed NVC claim document onto the Portal, together with the documents required in support of the claim for non-protocol vehicle costs.
(5) The uploaded NVC claim document and the documents in support are sent to the compensator via the Portal.
(6) Support for unrepresented claimants who are unable to use the Portal can be obtained via the Portal Support Centre.
NVC response document
11.8
(1) Within 15 days of receipt of the NVC claim document, the compensator must complete the response document (known as “the NVC response document”) and upload the signed response document onto the Portal, together with any documents required in support.
(2) Annex D to this Protocol contains the standard form of NVC response document which the compensator must use.
(3) The NVC response document must be signed by the compensator with a statement of truth.
(4) The NVC response document enables the compensator to set out the information and documents which the court and the claimant are likely to need in respect of the Compensator’s Response to the claim for non-protocol vehicle costs.
(5) The uploaded NVC response document and any documents in support are sent to the claimant via the Portal.
11.9
(1) Once the compensator has complied with paragraph 11.8 or the 15 day period in paragraph 11.8 has expired, whichever happens first—
(a) the Portal will create the Court Valuation Form used in proceedings;
(b) the claimant may produce and send the relevant Court Pack list under section 12 of this Protocol.
(2) Where the 15 day period has expired and the claimant has produced and sent the Court Pack list, the compensator may still upload the NVC response document at any time before the relevant period for review of the Court Pack list set out in paragraph 12.6(1) has expired.
(3) Failure to upload the NVC response document as required by paragraph 11.8 or this paragraph may mean that the court will not consider the compensator’s arguments about the claim for non-protocol vehicle costs.
Disputes - procedure to start court proceedings
Introduction
12.1
(1) The Protocol permits the claimant to start court proceedings in certain circumstances.
This will involve different types of proceedings for each of those circumstances. This section explains what is needed for each of those types of court proceedings.
(2) Documents must be prepared for the court to use. These are put into what is known as the Court Pack. All those documents can be downloaded from the Portal and this section explains what is needed.
(3) Paragraph 12.2 directs the claimant to the paragraphs in this section which deal with each type of proceedings. Each of these has a table which shows the documents to be included in the Court Pack for that type of proceedings.
(4) Paragraphs 12.3 and 12.4 explain the steps the claimant needs to take with the Court Pack, before starting court proceedings.
(5) The relevant court form must be prepared on the Portal, using information already captured from the claim to date and additional answers provided by the claimant. This is explained further in paragraph 12.7.
(6) The Guide to Making a Claim gives more information about the steps that a claimant must take before starting court proceedings.
12.2
(1) The claimant may start proceedings under Practice Direction 27B, which is divided into section 1 covering general points and sections 2 to 11 setting out different procedures.
(2) Depending on the type of proceedings required, the claimant should use one of sections 2 to 11 in Practice Direction 27B. Table 1 below explains where to find the procedure for each type of proceedings and how to follow the requirements of this Protocol.
(3) The term non-protocol vehicle costs is abbreviated to “NVC” in the names given for the types of proceedings in the tables in this section and in the court forms.
Table 1
Type of case | Section of Practice Direction which applies | Paragraph of this Protocol | Table for documents | Court form |
Liability dispute only – liability denied in full | Section 2 | 12.9 | A | RTASC L |
Claim value dispute: no liability dispute, no NVC claim or uplift request | Section 3 | 12.11 | C | RTASC Q |
Claim value dispute: liability part disputed; may include NVC claim or uplift request | Section 4 | 12.10 | A, B (1) and B (2) where applicable | RTASC D |
Claim value dispute: liability not disputed; NVC claim; may include uplift request | Section 5 | 12.10 | B (1) and B (2) | RTASC D |
Claim value dispute: liability not disputed; no NVC claim; includes uplift request | Section 6 | 12.10 | B (1) | RTASC D |
Application for interim payment | Section 7 | 12.12 | E | RTASC O |
Non-payment of agreed interim payment | Section 8 | 12.12 | G (1) | RTASC O |
Starting due to limitation | Section 9 | 12.12 | D | RTASC O |
Dispute over fees | Section 10 | 12.12 | F | RTASC O |
Non-payment of agreed settlement sum | Section 11 | 12.12 | G (2) | RTASC O |
“The Court Pack” and notice of intention to start proceedings
12.3
(1) Before starting court proceedings, the claimant must prepare a Court Pack from documents held on the Portal as set out in Tables A to G, below.
(2) When the claimant confirms their intention to start court proceedings, the Portal will automatically generate a notice to the compensator that the claimant intends to start proceedings, for the purposes of section 152 of the Road Traffic Act 1988.
(2A) Where the claimant intends to start court proceedings to determine liability or due to limitation, the claimant must consider the overall valuation of their claim for court fee purposes and select one of the list of options on the Portal.
(2B) Where the claimant intends to start court proceedings to assess the value of the claim but has not made a counter offer showing their valuation of the claim, the claimant must complete the necessary details of their valuation on the Portal for court fee purposes including whether they say there is a whiplash injury.
(3) The Portal will determine the reason for starting proceedings from the steps taken in the claim. Where there are options provided for the reason, the claimant will first be asked to select the reason for starting court proceedings. This will enable the Portal to show the Court Pack contents from the relevant table.
(4) The claimant selects the documents to be included in the Court Pack from those shown on the Portal. Once all the documents have been selected, the Portal will then generate a list (“the Court Pack list”) showing the documents selected.
(5) The Court Pack list is generated on the Portal for sending to the compensator under paragraph 12.4.
(6)Support for unrepresented claimants who are unable to prepare the Court Pack on the Portal can be obtained from the Portal Support Centre.
Sending the Court Pack list
12.4
(1) The claimant must send the Court Pack list to the compensator via the Portal—
(a) no later than starting court proceedings due to limitation only;
(b) in any other case at least 5 working daysbefore starting court proceedings.
(2) The Portal will show the compensator which type of proceedings the claimant intends to start.
(3) Where the claimant wishes to start proceedings for failure to pay an agreed interim payment or an agreed settlement within the time specified in this Protocol (the procedure in paragraph 12.12 and Table G (1) or G (2)), they must not do so if, before the end of the period specified in paragraph (1)(b) above, the compensator pays the agreed amount.
Other linked claims
12.5
(1) Paragraph 5.8 explains the process by which the Portal runs a search for claims which are linked and automatically notifies the parties in each of these claims that there are linked claims.
(2) Where liability remains in dispute at the Court Pack stage, the claimant will be asked when completing the steps needed under paragraph 12.4 above if they are aware of any claims by other persons arising out of the same accident. These may be claims being made under this Protocol or under other protocols or procedures.
(3) This is so that the court form provides information to enable the court to consider whether directions are needed to link such claims together.
Responding to the Court Pack list
12.6
(1) The compensator has 5 working days to review the contents of the Court Pack list on the Portal. The reason for the claimant starting proceedings will be shown when the compensator is reviewing the Court Pack list.
(2) The compensator may add documents to the Court Pack list but may not remove any documents selected by the claimant. Where the compensator amends the contents of the Court Pack list, they must follow the procedure outlined in paragraph 12.9 to 12.12 below as applicable and send a corrected Court Pack list to the claimant.
(3) The claimant must then use the corrected Court Pack list to start court proceedings.
(4) Where the compensator fails to respond within the period stated in paragraph (1), the Court Pack list is treated as agreed and the claimant may start proceedings.
(5) Where the compensator intends to nominate a legal representative to accept service, the name and address and contact details of the legal representative should be provided to the claimant within the relevant period specified in paragraph (1) above. That address will then appear as the address for service in the court form.
(6) Where there is no address for the defendant on the Portal and save where paragraph 12.8 applies, the compensator will be asked at this point whether they—
(a) can provide an address for the defendant; or
(b) wish to nominate a legal representative under paragraph (5) above,
failing which the compensator will in this instance only be named in the court proceedings as the defendant.
Papers to be sent to court
12.7
(1) Where the compensator has either responded under Paragraph 12.6 or failed to respond within the period stated, the claimant will be prompted on the Portal to complete the steps needed to generate the papers to be sent to court.
(2) The claimant will first be asked the necessary questions to complete the relevant court form as set out in Table 1 at paragraph 12.2 above.
(3) The Portal will create the court form and the List of Documents for Court, which shows the documents to be included in the Court Pack and must be added to the front of the Court Pack when created.
(4) The claimant must—
(a) print off the court form and sign the statement of truth;
(b) print off the List of Documents for Court and the documents to be included in the Court Pack;
(c) put together the Court Pack, with the List of Documents for Court at the front and the other documents in the same order as listed.
(5) The signed court form and the Court Pack must be sent to the court with the relevant court fee to start proceedings.
MIB or RTA Insurer as second defendant
12.8
(1) Subject to paragraph (2) below, where the MIB or an RTA insurer has responded to the claim under this Protocol as compensator and has consented to be named in the proceedings as a second defendant, this section will apply and the process under paragraph 12.7 above will create a court form showing the MIB or RTA insurer (whichever applies) as second defendant.
(2) Where no address for the defendant has been provided by either party by the time the claimant completes the step set out at paragraph 12.7(2) above, this Protocol will no longer apply to the claim.
Court Pack contents (cases for determination of liability under section 2 of Practice Direction 27B)
12.9
(1)Where liability has been denied in full and the court is asked to determine liability, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table A.
(2) The court form generated is Form RTASC L.
Table A (liability dispute, liability denied in full)
Documents and Evidence | Notes |
The Small Claim Notification Form including the claimant’s version of events | |
Any witness statements uploaded to the Portal | |
Any police report uploaded to the Portal | |
Any photographs uploaded to the Portal | |
Any sketch plans uploaded to the Portal | |
Any dashcam, or video clips uploaded to the Portal | The claimant must tick the appropriate box on the court form to indicate that such footage will be made available to the court at the hearing, but need not be sent to the court with the Court Pack |
Any other documents or data uploaded to the Portal in support of the claimant’s claim | |
The Compensator’s Response | including summary of facts or witness summary if applicable |
The defendant’s version of events supported by a statement of truth | |
Any other documents uploaded to the Portal by the compensator, including witness statements, photos, sketch plan, dashcam or video clips |
Court Pack contents (cases for trial under sections 4, 5 or 6 of Practice Direction 27B)
12.10
(1) This paragraph applies where the parties have been unable to agree settlement and either—
(a) liability has been admitted by the compensator in part but remains in dispute;
(b) the claim includes a claim for non-protocol vehicle costs; or
(c) the claimant applies for an uplift in exceptional circumstances.
(2) Where the Court is asked to assess the value of the claim in a case to which paragraph (1) applies, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table B (1) and—
(a) where liability remains in dispute, the documents and evidence in Table A;
(b) where the claim includes a claim for non-protocol vehicle costs, the documents and evidence in Table B (2).
(3) The court form generated is Form RTASC D.
Table B (value dispute, liability disputed, may include NVC or uplift)
Documents and evidence | Notes |
B (1) (value dispute, general) | |
The Small Claim Notification Form |
|
The Compensator’s Response | including summary of facts or witness summary if applicable |
| The defendant’s version of events (if provided) supported by a statement of truth | |
The Court Valuation Form | |
The claimant’s List of Losses | |
All documents in support of the List of Losses uploaded to the Portal | |
The fixed cost medical report uploaded to the Portal | |
Any other medical report uploaded to the Portal | |
Any medical records or photographs of the injury uploaded to the Portal | |
Details of any challenge to a medical report and the response | |
Invoices for any medical report and for any other disbursement, which the compensator has not already paid for | |
Record of Offer and Acceptance Interim Payment | |
| |
B (2) (non-protocol vehicle costs) | |
|
|
Court Pack contents (cases for assessment under section 3 of Practice Direction 27B)
12.11
(1)Where the parties have been unable to agree settlement under the RTA Small Claim Protocol and—
(a) liability is not in dispute;
(b) there is no claim brought for non-protocol vehicle costs; and
(c) there is no application for uplift in exceptional circumstances,
the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table C below.
(2) The court form generated is Form RTASC Q.
Table C (value dispute, no liability dispute, no claim for NVC or uplift)
Documents and evidence | Notes |
The Small Claim Notification Form |
|
The Compensator’s Response | including summary of facts or witness summary if applicable |
The defendant’s version of events (if provided) supported by a statement of truth | |
The Court Valuation Form | |
The claimant’s List of Losses | |
All documents in support of the List of Losses uploaded to the Portal | |
Any fixed cost medical report uploaded to the Portal | |
Any other medical report uploaded to the Portal | |
Any medical records or photographs of the injury uploaded to the Portal | |
Details of any challenge to a medical report and the response | |
Invoices for any medical report and for any other disbursement, which the compensator has not already paid for | |
Record of Offer and Acceptance Interim Payment | |
|
Court Pack contents (cases for determination under sections 7 to 11 of Practice Direction 27B)
12.12
(1) Where proceedings are started—
(a) due to limitation, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table D;
(b) to make an application for an interim payment previously requested, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table E;
(c) in respect of non-payment of an agreed interim payment, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table G (1);
(d) in respect of a dispute over fees, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table F;
(e) in respect of non-payment of an agreed settlement, the Court Pack to be prepared by the claimant must contain the documents and evidence set out in Table G (2).
(2) The court form generated is Form RTASC O.
Table D (limitation)
Documents and Evidence | Notes |
The Small Claim Notification Form | The SCNF |
Table E (interim payment request)
Documents and Evidence | Notes |
The Small Claim Notification Form | |
The Compensator’s Response | |
The date stamped Interim Request Form | |
Details of the items of other protocol damages claimed to date | |
All documents uploaded to the Portal in support of the other protocol damages | |
Medical report if relevant | The medical report would only be relevant where it demonstrates that treatment has been recommended and/or sets out the cost and those costs form part of the interim payment request. |
Table F (dispute over fees)
Documents and Evidence | Notes |
The Small Claim Notification Form | |
The Compensator’s Response | |
The Court Valuation Form | |
The claimant’s List of Losses | |
All documents in support of the List of Losses uploaded to the Portal | |
Any fixed cost medical report uploaded to the Portal | |
Any other medical report uploaded to the Portal | |
Any medical records or photographs of the injury uploaded to the Portal | |
Invoices for any medical report and for any other disbursement, which the compensator has not already paid for | |
The compensator’s reasons for not paying any item of fees |
Table G (failure to pay agreed sums)
Documents and Evidence | Notes |
G (1) failure to pay agreed interim | |
The Small Claim Notification Form | |
Date stamped Record of Offer and Acceptance Interim Payment | |
G (2) failure to pay agreed settlement | |
The Small Claim Notification Form | |
Date stamped Record of Offer and Acceptance. |
ANNEX A
Defendant’s Version of Events
This document must be signed by the defendant driver:
My version of events is:
Version of events |
The version of events stated in this form must be the same as that provided in the compensator’s response where it has been confirmed that the compensator has the defendant’s version of events.
Statement of Truth:
I believe that the facts stated in this Defendant’s Version of Events are true
I understand that proceedings for contempt of court may be brought against me if I make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Signed……………………………………………
Name……………………………………………..
Dated………………………………………………
ANNEX B
Standard instructions for use by compensator requesting further report on claimant’s behalf
We send these instructions on behalf of the claimant [NAME and ADDRESS], who has consented to this request. Please note that we are not acting as the claimant’s representative in this matter and the claimant is unrepresented and brings this claim via the RTA Small Claims Protocol.
You should contact the claimant direct to arrange an appointment. Your report must be sent direct to the claimant for consideration. No copy should be sent to us.
We can confirm that we will meet your reasonable fees for preparation of the report.
The claimant’s injuries follow a road traffic accident on [date]. [Liability/ Fault] has been [admitted], [admitted in part].
Reason for instruction:
The claimant has advised that they need a further report from a [type of expert] because:
[delete as appropriate]
- it is recommended in the first expert's report; or
- the first medical report recommends that further time is required before a prognosis of the claimant’s injuries can be determined; or
- the claimant is receiving continuing treatment; or
- the claimant has not recovered as expected in the original prognosis.
Previous medical report
[Delete as appropriate]
The claimant has provided a copy of the first medical report which is attached to these instructions:
or
The claimant has not provided a copy of the first medical report to us but will bring a copy of it to their appointment.
Further information [if applicable]
The claimant has provided further information about their request for a further report as follows: details
It is not expected that you will need to review any medical records. If you consider that they are required before you can express a final opinion please contact the claimant to arrange obtaining the relevant records.
Instruction
Please would you arrange to examine the claimant and provide a report on their injuries arising from the accident. You should make clear when expressing a prognosis for recovery as to when the period of recovery starts from and ends respectively.
ANNEX C
Non-Protocol Vehicle Costs Claim Document
Guidance:
- This document should be completed and signed by you, the claimant, once you have completed all of the relevant screens on the portal and obtained all of the relevant supporting evidence from the organisations handling these losses.
- If you do not know the answer to any of the questions you should contact the company that provided the relevant service.
- Once this document is completed and signed it must be uploaded to the portal. The compensator will then have 15 days to upload the response document.
I have the following non-protocol vehicle costs to be added to my claim (you must complete each one that applies to you):
- Costs of Repairs or Write off value of the vehicle
- The company which handled this loss on my behalf is (e.g. your insurer / another company etc):
Company name: |
- I have attached the following documents in support of my claim for these losses (e.g. Engineers report, repair Invoice or estimate, photographs of the damage)
Documents:
|
- The company which handled this loss on my behalf is: (e.g. your insurer / another company etc):
Company name: |
- I have attached the following documents in support of my claim for these losses (e.g. Recovery invoice, engineers report, repair Invoice):
Documents:
|
- Storage costs
- The company which handled this loss on my behalf is (e.g. your insurer / another company etc):
Company name: |
- I have attached the following documents in support of my claim for these losses (e.g. Storage invoice, engineers report, repair Invoice)
Documents:
|
- Temporary vehicle
- The company which arranged the hire of the temporary vehicle on my behalf is (e.g. your insurer / another company etc)
Company name: |
- Hire charge invoice(s): I have attached the following documents in support of my claim (e.g. rental agreement / hire agreement)
Documents:
|
- Hire period: the period(s) of hire I am claiming for is/are:
Hire start date: Hire end date: |
- My need to hire a replacement vehicle: (you must state all facts relied up to explain why you needed to hire a replacement vehicle for the duration of the hire period.)
I needed the vehicle because: |
- The daily rate(s) of hire I am claiming is/are:
Daily hire rate as shown on rental agreement: £ |
- The rate of hire is reasonable for the following reasons (you must state all facts relied up by you to explain why the rate of hire was reasonable):
Reasons: |
- The period of hire is reasonable for the following reasons (you must state all facts relied up by you to explain why the period of hire was reasonable):
Reasons: |
- My claim for hire is a claim for “credit hire”. I was unable to afford to pay for the hire myself (this is known as “impecuniosity”) for the following reasons: (you must state all facts relied up by you to explain why you were not able to afford to pay for the hire of the replacement vehicle.)
I was unable to meet the cost of the hire because:
- I understand that I will be directed by the Court to disclose financial and other documents supporting my response on impecuniosity after proceedings have been issued.
Statement of Truth:
I believe/The Claimant believes that the facts stated in this Non-Protocol Vehicle Costs Claim Document are true
I/The Claimant understand(s) that proceedings for contempt of court may be brought against me/them if I/they make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Signed……………………………………………
Name……………………………………………..
Dated………………………………………………
If signing on behalf of a firm or company give position or office held
[text box]
[Date field]
ANNEX D
Non-Protocol Vehicle Costs Response Document
Guidance: this document must be completed by the compensator and uploaded onto the portal within 15 days of the claimant uploading a Non-Protocol Vehicle Costs Claim Document.
The following losses are disputed (complete each relevant section)
Costs of Repairs / Write off value of the vehicle
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
|
Recovery Costs
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
|
Storage Costs
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
|
Temporary Vehicle
This loss is disputed for the following reasons:
The compensator attaches the following relevant documents (if any):
|
The court is requested to make the following modified directions in respect of the claim for non-protocol vehicle costs if not the standard directions in Appendix B to PD 27:
Alternate / additional directions required:
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Statement of Truth
The compensator believes that the facts stated in this Non-Protocol Vehicle Costs Response Document are true.
I understand that proceedings for contempt of court may be brought against me if I make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I am duly authorised to sign on behalf of the compensator.
Signature……………………………
Name……………………………….
Position………………………………
Date………………………………….
“