Claimant firms are facing costs restrictions more than ever following the implementation of the Whiplash Reforms in 2021. Defendant insurers continue to pursue arguments of fundamental dishonesty or LVI with deep pockets, seeking the protection of small costs recovery.

However, it appears that not all are aware of the cost provisions in CPR 45.29N.

Following the submission of a small claim in the OIC portal pursuant to 6.6 of the protocol the Defendant can make an admission of liability in full, in part, deny liability or admit fault (in full or in part) for the accident, but dispute that the accident caused any injury to the claimant.

Unless the compensator makes an admission of liability in full, the Compensator’s Response on liability must also set out the defendant’s version of events and provide any evidence in support.

An admission of liability in part under (b) and an admission of fault in part under (d) must include the percentage for which the compensator admits liability or fault as appropriate.

The circumstances when the protocol will no longer apply are stipulated at 4.5 as:

(1) This Protocol will no longer apply to a claim where—
(a) either party notifies the other through the Portal that the claim has been revalued and that they reasonably believe the overall claim is more than £10,000 or the claim for damages for injury is more than £5,000;
(b) either the claimant or defendant becomes a protected party as defined in rule 21.1(2);
(c) the compensator notifies the claimant through the Portal that the claim is unsuitable for this Protocol because there are complex issues of fact or law;
(d) the compensator through the Portal makes an allegation of fraud or fundamental dishonesty against the claimant in respect of their claim;
(e) the compensator disputes or continues to dispute under paragraph 8.9 that the accident caused the claimant any injury following disclosure of a medical report;

The protocol makes it clear that the allegations are to be made through the portal.

Defendant insurers commonly seek to raise allegations of LVI or FD in correspondence, and then upon the Claimant exiting the portal as a result of the same, seek to argue unreasonable exit.

In the event that it is raised in correspondence outside the portal this is non-compliant, and a request should be made for portal compliance.

Exiting the portal in circumstances outside that permitted gives rise to arguments of unreasonable exit and conduct, thereby denying the Claimant opportunity to recover standard costs.

In the event that the Defendant accepts fault but disputes that the accident caused any injury to the claimant, and the claimant decides to proceed with the claim, then paragraph 7.9 will apply and the medical expert will be asked to comment on the dispute in their report.

Where the Defendant has made an admission in full, there is still a further opportunity to raise an allegation that the Claimant was not injured as alleged pursuant to paragraph 8.9.

The protocol makes it clear once again that any such allegation is to be made through the portal and within the relevant time period.

Pursuant to 45.29N:

(1) This rule applies where—
(a) a claim has been started under the RTA Small Claims Protocol, but no longer continues under that Protocol; and
(b) the claim has not subsequently proceeded under the RTA Protocol.
(2) Where this rule applies, Section IIIA will apply as though the claim had started under the RTA Protocol, except where—
(a) the court makes an order under rule 45.29M;
(b) the claim no longer continues under the RTA Small Claims Protocol because either the claimant or defendant becomes a protected party as defined in rule 21.2(2).

45.29M states:

(1) This rule applies where the claimant—
(a) does not comply with the process set out in the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“the RTA Small Claims Protocol”); or
(b) either—
(i) elects not to continue with that process;
(ii) elects not to proceed with that process having been notified by the defendant pursuant to paragraph 6.15(4)(b) of the RTA Protocol that if proceedings were issued, the small claims track would be the normal track for that claim,
and starts proceedings under Part 7 which are not allocated to the small claims track.
(2) Where a judgment is given in favour of the claimant, but—
(a) the court considers that the claimant acted unreasonably—
(i) by valuing the overall claim at more than £10,000 or the claim for damages for injury at more than £5,000, so that the claimant did not need to comply with the RTA Small Claims Protocol;
(ii) by electing not to proceed under the RTA Small Claims Protocol, following notification pursuant to paragraph 6.15(4)(b) of the RTA Protocol; or
(iii) in any other way that caused the process in the RTA Small Claims Protocol to be discontinued; or
(b) the claimant did not comply with the RTA Small Claims Protocol at all despite the claim falling within the scope of the Protocol,
the court may order the defendant to pay no more than the fixed costs together with disbursements allowed in accordance with paragraphs 1.13 and 1.14 of Practice Direction 27B.

If the Claimant has been protocol compliant, then in the event that the Claimant defeats an argument of FD and/or LVI, then the Claimant stands to recover standard costs at trial namely £2,655 plus 20% and disbursements.

Olivia Cox

For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk