They say that the only things that are inevitable in life are death and taxes. If you deal with Fast Track RTA claims (and, since last summer, Fast Track EL and PL), dealing with the MoJ Claims Portal can be added to that list of joyful experiences. Filling in tedious insurance forms is probably not what attracted you to legal practice. However, despite what Defendant insurers and their representatives may try and tell you, not all RTAs with a value of less than £25,000.00 fall to be dealt with within the Portal.
Setting aside the obvious exception of Small Claims Track matters, if your claim falls within the exceptions set out in paragraph 4.5 of the Pre-Action Protocol for low value RTAs then the protocol never applies and the fixed costs for settling either within or without the Portal do not apply – you can recover your client’s actual costs, subject to the usual reductions for proportionality and the test of reasonableness, which will inevitably be far in excess of the risible sums recoverable under the Protocol.
Under the aforementioned Paragraph 4.5, the cases which fall outside the scope of the Protocol are:
(1) in respect of a breach of duty owed to a road user by a person who is not a road user;
(2) made to the MIB pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent or supplementary Untraced Drivers’ Agreements;
(3) where the claimant or defendant acts as personal representative of a deceased person;
(4) where the claimant or defendant is a protected party as defined in rule 21.1(2);
(5) where the claimant is bankrupt; or
(6) where the defendant’s vehicle is registered outside the United Kingdom.
Thus, if the negligence of the insurance company’s insured kills their victim, or the negligent party runs away, the insurance industry deigns to pay the reasonable costs of bringing a claim on their behalf. How considerate of them. This has not; however, filtered down to their costs representatives so be on your guard when Defendant costs negotiators try and tell you that your fatal accident claim ought to have proceeded via the Portal ergo your costs are almost certain to be assessed at tuppence.
The obvious question seems to be how long this state of affairs will be allowed to continue? At some point insurers will decide that they don’t want to pay extra purely because someone they insure made a mistake that killed someone. Do we need to start planning how to run such claims without making a substantial loss under the Portal?