The portal claims process, established in April 2010, aims to simplify and reduce the timeframe for resolving cases. In the event of a successful claim, the insurers have to pay significantly lower contributions to the injured person’s legal fees.
Recent changes to the portal have not been positive for accident victims. It is now a requirement to submit via the portal all road traffic claims for up to £25,000 (previously £10,000) as well as employers and public liability claims of the same value. As of July 2013 the contribution to legal fees can be as low as £500.
Cases leave the process where full liability is not admitted (except in road traffic cases where the only issue on liability is alleged failure to wear a seatbelt). There are however other circumstances in which the injured party may elect to exit, increasing the contribution to their legal fees payable in the event of a successful claim. Perhaps not surprisingly therefore, claimants exit the portal whenever is appropriate.
Once a claim has left the process it cannot re-enter and therefore the choice to exit is not one that should be taken lightly.
In the unreported case of Patel v Fortis Insurance Ltd in 2011 the court held that the claimant was not justified in exiting where the insurers failed to send an acknowledgement within one working day, contrary to paragraph 6.10 of the protocol covering the portal procedure. The judge said that such conduct was unreasonable and contrary to the spirit of the protocol.
Case law in this area is still very much developing and since then there have been a number of decisions which were more favourable to claimants.
In Letts v Royal Sun Alliance Plc (2012) the claimant had issued proceedings on the day the protocol period had expired. Here it was held that waiting a few more days would not have changed the position and the claimant was right to exit the portal. On appeal, the judge saw no reason to interfere with the decision.
Another positive decision for claimants followed the case of Bromley v Hewson (2012) where eventual damages did not exceed £1,000 but the court decided that fixed portal legal costs should still be paid because the insurers had not taken the decision to exit the process beforehand.
In the current situation where the contribution to legal costs payable by insurers in portal cases is so low, it is in the interests of injured claimants to exit the portal following any technical breach of the protocol. However, some insurers are clearly willing to challenge this and the claimant may be left with only fixed portal costs if an argument in support of a decision to exit fails. Nevertheless, in this period of uncertainty solicitors representing accident victims are right to learn the rules and test their arguments before the courts where the protocol has not been adhered to.