Damages Claims Portal update — DCP mandatory for defendants from 15 September

From 15 September 2022, using the DCP will become mandatory for defendant legal representatives.

As most interested observers will be aware, the Damages Claims Portal (“DCP”) has been mandatory for claimant legal representatives for some time. All claims, for unspecified damages only, must be commenced in the DCP.

However, up to now, the use of the DCP has been voluntary for defendants. At present, defendant’s legal representatives must agree to have proceedings served upon them via the DCP. If permission is not given, the claim leaves the DCP and proceeds as a “paper” claim.

From 15 September 2022, using the DCP will become mandatory for defendant legal representatives.

What are the changes?

The involvement of defendant legal representatives will be regulated by the updated version of Practice Direction 51ZB of the Civil Procedure Rules recently released by the Ministry of Justice. The changes deal primarily with ensuring that the defendant’s solicitors are in a position to accept service of proceedings via the DCP:

• The updated Practice Direction introduces a new requirement for the claimant solicitor to notify the defendant at least 14 days prior to bringing a claim using the DCP, “unless it is impractical to do so”. This requirement is to give the defendant the opportunity to instruct a legal representative prior to service of proceedings.
• If the defendant instructs solicitors to accept service of proceedings, this must be communicated, by the defendant, to their solicitors This is because there is a requirement for defendant solicitors to notify the claimant that they are instructed.
• The defendant solicitor must sign up to the DCP before the claim is started (please note, the claimant solicitor no longer needs explicit confirmation from the defendant solicitor that they are prepared to accept service of proceedings in the DCP as was the case previously).
• The defendant solicitor must also provide the claimant solicitor an email address for claims notifications from the DCP.
• In turn the claimant solicitor must provide this email address to the court.

The amendments to the Practice Direction seek to increase the utilisation of the DCP by making its use mandatory for defendant legal representatives. However, the amendments do not make it mandatory for defendants to instruct solicitors prior to issue of proceedings in the DCP. If no solicitors are instructed the claimant will issue proceedings within the DCP and then serve them in the traditional way (by post or some other agreed method). The claim will then drop out of the DCP and proceed offline.

The amendments give defendants extra breathing space to get legal representation in place but do not go as far as they could have in ensuring absolute defendant participation in the DCP. No doubt, this is due to the current limitations of the DCP, but as it develops, particularly in allowing the participation of litigants in person or insurers, this will change.

The modification and development of the DCP continues at pace. Her Majesties’ Court and Tribunal Service has received a huge amount feedback from the legal and insurance sectors and, as a result, plans a large expansion of the capabilities of the DCP in near future particularly in the area of interim applications.

It will be interesting to see if the mandation for defendant legal representatives and the updated Practice Direction will increase the utilisation of the DCP.

Mandatory use of the Damages Claims Portal

Our recent article reported that the Damages Claims Portal (“DCP”) has now become mandatory for claimant legal representatives. This means that all claims for unspecified damages only must be commenced in the DCP. This is all part of an ongoing policy to digitise as much of litigants’ interactions with the courts as possible.

However, up to now, the use of the DCP has been voluntary for defendants. At present, defendant’s legal representatives must agree to have proceedings served upon them via the DCP. If permission is not given, the claim leaves the DCP and proceeds as a “paper” claim.

As for defendants who have not instructed solicitors prior to proceedings being commenced in the DCP, at present, there is no facility for defendants to sign up to or accept service via the DCP unless they are represented by solicitors.

Therefore, where insurers often deal with claims prior to issue of proceedings, it is unsurprising that many claims have started in the DCP and automatically exited as there are no defendant legal representatives on the record.

The DCP continues to be developed and tested and, from 2 June 2022, it will become mandatory for defendant legal representatives to use the DCP.

The involvement of defendant legal representatives will be regulated by an updated version of Practice Direction 51ZB of the Civil Procedure Rules. It is unsurprising that the updated Practice Direction takes steps to increase the utilisation of the DCP.

The updated Practice Direction introduces a new requirement for claimant solicitors to notify defendants 14 days prior to bringing a claim using the DCP. This requirement is presumably to give the defendant the opportunity to instruct a legal representative prior to service of proceedings.

If the defendant instructs solicitors to accept service of proceedings, this must be communicated, by the defendant, to their solicitors as well as the claimant. This is because there is a requirement for defendant solicitors to notify the claimant that they are instructed.

The defendant solicitor must sign up to the DCP before the claim is started and the claimant solicitor no longer needs confirmation from the defendant solicitor that they are prepared to accept service of proceedings in the DCP.

The amendments to the Practice Direction do not make it mandatory for defendants to instruct solicitors prior to issue of proceedings in the DCP but do give defendants extra breathing space to get legal representation in place.

Proceedings, where no defendant legal representative has been nominated, will not continue in the DCP but should be served in the usual way by post, or some other agreed method.

It is notable that there has been no expansion of access to the DCP for parties like insurers or litigants in person. However, it is certain that modification and development of the DCP continues at pace. Her Majesties’ Court and Tribunal Service has received a huge amount feedback from the legal and insurance sectors and, as a result, plans a large expansion of the capabilities of the DCP in near future.

It will be interesting to see if the mandation for defendant legal representatives and the updated Practice Direction will go some way to increase the utilisation of the DCP.

The Damages Claims Portal is coming

This insight was published on the 31 March 2022.

Her Majesty’s Court and Tribunals Service (“HMCTS”) has, over the last few years, been developing digital services to improve the efficiency of the courts.

One such innovation is the Damages Claims Portal (“DCP”) which is imminently due to leave the pilot stage and become mandatory for use by claimants from 4 April 2022 and for defendants from June 2022.

Weightmans is at the forefront of the testing of the DCP from a defendant perspective and is working with HMCTS to request key features, that will benefit the parties are included.

What is the Damages Claims Portal?

The DCP is an online claims process for county court damages claims that facilitates the digital issue of a claim. The DCP is designed to allow defendants to respond to the claim digitally via the Portal.

The DCP is intended, in the long term, to be a full and streamlined end to end service for damages claims in the county court. However, at present, the DCP service guides a claim from issue of proceedings to filing of directions questionnaires only.

The DCP enables users to issue and serve proceedings, acknowledge receipt of the claim, file a defence, seek a defence extension, file directions questionnaires, file proposed directions and upload documents. This is all completed via the Portal without the need to send paper or PDF documents to the court. The DCP also has a notification function that automatically serves documents on an opponent’s legal representatives at the same time as they are filed in the DCP.

After the claim has passed the Directions Questionnaire stage, the claim, for now, exits the DCP and continues in the county court in the current format.

What claims are affected by the DCP?

The DCP will cover all county court claims for damages only. This includes claims for personal injury. There are various claim types that are not covered by the DCP including:

• Claims brought under CPR 8 (for example infant approval proceedings)
• Claims where the claimant is a protected party
• Claims with more than three parties.

Key differences in the way claims are handled

The DCP never closes. It is open for a claimant to issue proceedings outside of office hours including weekends. However, this does not affect the rules of service - defences still must be filed by 4pm on the last available day as provided for in the Civil Procedure Rules.

The DCP seeks to speed up the administrative tasks around bringing a claim for damages so that, over time, court backlogs will start to decrease. The court will not automatically enter judgment in respect of claims that are not responded to in the DCP. If there is no response then the claimant will have to apply for judgment. If the claimant does not do so then the claim will be dismissed from the DCP after 6 months.

What preparations need to be made by insurers and self-insured?

Developing effective internal processes within legal representative organisations will be key in ensuring a smooth transition to DCP. An important aspect of this is creating central points of contact for receipt of new proceedings between representatives and the DCP. This will help create the same visibility in respect of DCP-issued proceedings as exists in the current email and post-based system.

Parties engaging with claimants preparing to issue proceedings via the DCP, be they insurers, self-insureds or legal representatives, can assist in this process by identifying to claimants the correct email address for DCP purposes of their chosen legal representatives.