The seven-year itch: Common traps of the RTA portal

The portal for low-value road traffic personal injury claims was set up in 2010. Nearly seven years on, the system is still tripping up litigants. Here are some of the most common errors, and how they could be avoided.

Unreasonable exit from stage 2

This is not a basis for applying to strike out the claim for abuse of process, or a defence to a part 7 claim. It is a conduct issue which should be dealt with at the conclusion of the case under c CPR 45.24. A judge who finds unreasonable exit ‘may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19’. The rules are silent as to the defendant’s costs, but I suggest they should also have the costs of any additional work caused but not work that would have been necessary anyway.

Claimant’s evidence insufficient

Please remember parties cannot refer to any evidence within stage 3 which has not been disclosed in accordance with the rules at stage 2. Stage 3 is not designed to allow defects in the evidence to be remedied (see the note to 8BPD7.1 at page 440 in the 2016 White Book). There is no provision in the rules for either party to remove the matter from stage 3 to part 7 at that stage. The court may do so if it does not feel it is in a position to assess damages on the evidence (8BPD7.2). However, the danger is that it is open to the district judge to simply say ‘the evidence is not here so your case is not proved’.

Contradictory and unclear medical reports

Medical reports should be carefully checked for factual inaccuracies or inconsistencies. Paragraph 7.3 of the pre-action protocol makes clear the factual accuracy of the report cannot be challenged after it is sent to the defendant, and any inconsistency will be resolved in favour of the paying party.

Issue of stage 3 proceedings within prognosis period

There is no provision within the stage 3 process for updated medical evidence. If the claimant decides to proceed to settlement before the expiry of the prognosis period they run the risk of being fixed with that prognosis, even if it is incorrect.

If the court is persuaded to allow further medical evidence, the case will be removed into part 7, and there may be costs penalties for unreasonable exit. Care should be taken when taking instructions from a claimant to proceed if the prognosis period has not expired.

Special damages, miscellaneous, and travel expenses

These are usually poorly evidenced. Phone statements can prove mobile phone charges to premium-rate numbers. Calculate travel expenses showing mileage to and from postcodes of locations.

Keep receipts for parking, prescriptions, heat pads, special pillows, etc. Statements supporting special damages will help prove your case, particularly loss of earnings or care claims. Invoices, receipts, or photographs alone are not necessarily self-proving of loss or necessity.

Defendant’s evidence

The district judge is unlikely to consider an issue which has not been raised at stage 2. Include your evidence of contrary rates for physiotherapy or spot hire rates at stage 2 (see paragraphs 7.41 and 7.64(2)(a) of the pre-action protocol) so the judge can make an assessment at stage 3, or they may simply allow the claimant’s amounts claimed if theirs is the only evidence.

The Court of Appeal in Phillips v Willis [2016] EWCA Civ 401 confirmed hire charges are suitable to be dealt with within the portal, although there may be some cases which are not. However, if defendants have shown complete disregard for portal rules at stage 2 the court may proceed on the claimant’s evidence alone.

District Judge Karen Doyle sits at Birkenhead County Court