The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents & Low Value Personal Injury (Employers' Liability & Public Liability) - Stage 3 Procedure
JB v RWE Generation UK Limited [2017]
The Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (the "EL / PL Portal") describes the behaviour the Court expects of parties prior to the commencement of proceedings where a Claimant claims damages valued at no more than £25,000 in an employers’ liability ("EL") claim or in a public liability claim ("PL"). With some exceptions, the EL / PL Portal applies to all such claims arising from an accident occurring on or after 31 July 2013 or, in a disease claim, where no letter of claim has been sent to a Defendant before that date. The most frequently encountered exceptions to the EL / PL Portal are, in the case of disease claims, where there is more than one Defendant or for mesothelioma claims.
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The EL / PL Portal (and the CPR) recognises that compliance with the terms of the EL / PL Portal might not be possible before the expiry of the limitation period. In such circumstances, the EL / PL Portal provides that a Claimant may commence proceedings using the procedure set out under CPR Part 8 and in accordance with Practice Direction 8B (Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and Low Value Personal Injury (Employers’ Liability and Public Liability) Claims – Stage 3 Procedure). The procedure permits Claimants to apply to Court for an Order to stay (ie – suspend) the CPR Part 8 proceedings while the parties take steps to follow the EL / PL Portal.
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The majority of Practice Direction 8B is concerned with the situation in a claim where the parties have followed the EL / PL Portal, but are unable to agree the amount of damages payable at the end of Stage 2. Quite properly, the Practice Direction provides a mechanism whereby the parties can bring the quantum issue before the Court whilst keeping the claim in the EL / PL Portal.
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However, paragraphs 16.1 to 16.7 contain a self-contained code relating to limitation, where compliance with the EL / PL Portal is not possible before the expiry of a limitation period (para 16.1). In such circumstances, a Claimant may start proceedings under CPR Part 8, stating that a stay of proceedings is sought in order to comply with the EL / PL Portal (para 16.2). The costs benefit to Defendants in enabling claims running up to limitation to continue in the EL / PL Portal is obvious in that it removes the need for Claimants to exit the EL / PL Portal in order to issue CPR Part 7 proceedings.
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In such cases, a Claimant must send to a Defendant the CPR Part 8 Claim Form together with the Order imposing the stay. No time limit for doing so is explicitly imposed in the CPR, but the standard Court text, the White Book, suggests that such notification must be immediate. The requirement to file and serve an Acknowledgment of Service is disapplied. The terms of para 16.2 are not mandatory and, as such, there is an obvious risk that a Claimant might make use of the procedure without having notified a Defendant that they have done so.
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Where a stay is granted by the Court, and the parties have complied with the EL / PL Portal and the Claimant wishes to start the Stage 3 Procedure, a Claimant must then make an application to Court to lift the stay and request directions (para 16.5). Where the claim exits the EL / PL Portal during Stage 1 or Stage 2, and a Claimant wishes to start proceedings in the normal way under CPR Part 7, they must make an application to the Court to lift the stay and request directions (para 16.7 – again no time limit is imposed for doing so, but should, presumably, be immediate). It is this second scenario that can give rise to problems through abuse of the procedure.
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In JB v RWE Generation UK Limited [2017], Dolmans were instructed in a Noise Induced Hearing Loss ("NIHL") claim in circumstances where it became apparent to the Defendant’s insurers that the Claimant had started proceedings under CPR Part 8 (due to perceived limitation problems) more than 2 months before the claim was submitted through the EL / PL Portal.
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The Claimant’s Solicitors, on their own admission, had been instructed on 30 April 2014 and had requested copy medical records on 25 June 2014. The Claimant underwent an audiogram at his home on 17 December 2014. Thereafter, nothing further appears to have happened until 25 April 2017, when the EL / PL Portal Claim Notification Form ("CNF") was incorrectly submitted to Capita, the incorrect claims handlers for the claim (who promptly rejected the same). Unbeknownst to the Defendant, a CPR Part 8 Claim Form was issued on 27 April 2017 (3 days before the third anniversary of the Claimant’s Solicitor’s instruction) and, on 11 May 2017, the County Court at Manchester ordered that the proceedings be stayed until 20 November 2017.
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On 2 June 2017, the Claimant resubmitted the CNF to the correct claims handler who, on 30 June 2017, advised the Claimant’s Solicitors that the claim was statute barred (by reference to the aforesaid initial date of instruction and the time elapsed to the anticipated date of first notification, 2 June 2017). On 3 July 2017, the Claimant served a copy of the Order and CPR Part 8 Claim Form on the Defendant (ie – some 6 weeks or so late), claiming that proceedings had been issued in time. The claim was formally rejected under the EL / PL Portal on 5 July 2017. The Claimant’s Solicitors were invited to apply to lift the stay pursuant to para 16.7, but refused to do so on the ground that they were not ready to start proceedings under CPR Part 7.
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Quite naturally, the Defendant was aggrieved that the Claimant appeared to have done nothing to progress his claim for some 22 months, but had, through what it considered an abuse of the CPR Part 8 procedure, obtained in effect a Court sanctioned limitation moratorium whilst he assembled a case. Dolmans were instructed (on 6 July 2017) to apply to set aside the Order and/or to lift the stay, with costs.
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At a hearing on 10 August 2017, the District Judge set aside (with costs) the Order granting the stay (ie – that dated 11 May 2017) on the grounds that the claim was not in the EL / PL Portal when the CPR Part 8 proceedings were commenced and / or the stay was granted. The District Judge stopped short, however, from striking out the whole of the CPR Part 8 proceedings as an abuse of process.
Subsequent to this, the Claimant obtained, ex-parte, an Order converting the existing CPR Part 8 Proceedings to CPR Part 7 Proceedings and for a transfer of the case out of the County Court Money Claims Centre in Salford to the County Court at Swansea. In response, the Defendant issued a further application to strike out this (effectively second) set of proceedings on the grounds that this would constitute an abuse of process.
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Those proceedings are currently extant and our latest application for strike out is due for hearing in early November 2017. We may find the proceedings are discontinued in advance of that hearing.
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Comment
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The self-contained procedure set out in paragraphs 16.1 to 16.7 of Practice Direction 8B works well in those situations where both parties wish to deal with the claim under the EL / PL Portal to conclusion and are aware that a CPR Part 8 Claim Form has been issued, and a stay obtained, for that purpose. The further one moves away from that ‘ideal’, the more susceptible the self-contained procedure becomes to abuse. We have seen a number of instances recently, albeit the above case is perhaps the most obvious, where it would appear that the CPR Part 8 procedure is being used (arguably in an abuse of process) to circumvent earlier inactivity by the Claimant and/or his Solicitors.
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As is perhaps obvious from the comments above, this was never the intention of the procedure which, used properly, fulfils a useful and necessary purpose in terms of containing costs with reference to “Portal Claims” which cannot be resolved before the limitation guillotine comes down.
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In that context, it is perhaps disappointing that the District Judge stopped short of striking out the claim as an abuse of process. An appeal was considered in this context, but, ultimately, not considered reasonably necessary.
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As touched upon above, the Claimant is now seeking to circumvent the Order made by subsequent issue of CPR Part 7 Proceedings, ignoring the obvious limitation issues inherent with the same. Thus, the stage is set for yet further argument as to abuse of process and we will keep readers advised.
