We review the impact of the employers’ liability and public liability (EL/PL) Portal and consider issues to which claims handlers should be alert. What reasons are causing claims to exit the Portal and does it offer a ‘one size fits all’ solution?
The EL/PL Portal applies to claims valued between £1,000 and £25,000 where the accident occurred on or after 31 July 2013, and to disease claims where no letter of claim was sent before 31 July 2013.
EL/PL Portal: number of CNFs created
Click on the image below to see the full graph (PDF, 99KB)
The number of claim notification forms (CNFs) created and sent to a compensator each month increased in the period up to October 2014. However, from November 2014 the number of CNFs has been steadier, although with some peaks and troughs.
EL/PL Portal: outcome of claims
Click on the image below to see the full charts (PDF, 223KB)
Evidence shows that if EL/PL claims (save for EL disease) are going to leave the Portal, the majority do so at Stage 1. Given the nature of EL/PL claims it is not surprising that the retention rate within the Portal is lower when compared to RTA claims.
Exiting the Portal
The main reasons we see for claims exiting the Portal are:
- The claimant notifies the defendant that the claim has been revalued so it will exceed the upper limit, for example by the introduction of psychological evidence.
- The defendant does not admit liability or admits liability but alleges contributory negligence.
- The defendant fails to perform its obligations under the Portal.
- The claimant gives notice that the claim has become unsuitable for the Portal procedure because, for example, complex issues of fact or law have emerged. However, if the court finds that the notice was given unreasonably, then it will award only fixed costs.
However, we have also observed the following EL/PL specific trends:
- Lack of information/purposely vague in relation to accident location for PL claims.
- Claimant solicitors pulling EL claims out of the Portal for failure to provide loss of earnings documentation. Whilst the requirement is that this information “must” be provided, there is no automatic sanction for failure to do so.
- Failing to carry out a reasonable search for the compensator. In EL claims an Employers’ Liability Tracing Office search should be carried out.
- Failing to submit claims in the Portal where there is more than one defendant.
A strong line should be taken in relation to claims which are believed to have unnecessarily or unreasonably exited the Portal. Our costs team frequently runs successful arguments that costs should be limited to fixed Portal costs.
Pre-action disclosure applications
Our experience shows that claimant solicitors often follow up a denial of liability with an application for pre-action disclosure (PAD). We see this more frequently with EL/PL claims when compared to RTA claims. These applications can be used as a tactic to increase costs and play on the uncertainty of documents to be disclosed over and above those provided for in the pre-action protocol.
Claimant solicitors rely on a court exercising its discretion under Part 31.16 of the Civil Procedure Rules (CPR). There is an inconsistent judicial approach, with some courts considering PAD applications on paper and awarding costs to the applicant, contrary to the CPR and without defendants having an opportunity to make submissions.
Claims handlers must be alive to fishing expeditions. They should invite the applicant to set out in full the basis of the alleged claim before providing disclosure and put the applicant on notice as to costs. Where appropriate, they should challenge costs on the basis of Part 46.1(2) of the CPR and relevant case law, in particular SES Contracting Ltd v UK Coal PLC .
However, in circumstances where the defendant is likely to be responsible for costs these should be fixed in accordance with Part 45.29H of the CPR.
Claims handlers remain under pressure to investigate claims promptly to keep them in the Portal, and to pick and choose the claims on which they run liability/contributory negligence arguments to avoid them exiting the Portal. On the other hand, claimant solicitors may be seeking for claims to exit the Portal to increase costs.
Our view is that that CNFs for EL/PL claims do not work as a ‘one size fits all’ template. They often do not contain enough information for an investigation to commence, and claimant solicitors are sometimes vague in the information that they provide.
We also consider that the changes that have been introduced to the RTA Portal could be of benefit in EL/PL claims. Certainly the requirement for an askCUE PI search reference number on CNFs would be useful for EL/PL claims as a means of identifying serial claimants.
Related item: Five years of the RTA Portal: has it worked?