Watson reshapes MOJ Portal claims strategy

Delay, procrastinate…. call it what you like - busy lawyers with bulging caseloads have had to manage a certain degree of damage limitation for time immemorial. With hundreds of cases to manage in the low value space, deciding what to deal with first, and what to put off, became a key task. It was inevitable then that MOJ Portal claims once protected from limitation via issue of Part 8b proceedings were not claims handlers top priority; this created tensions for insurers who felt blindsided with the lack of evidence they were being given plus extended lifecycles, leading to difficulties reserving accurately. It also penalised Claimants, delaying their claims for significant periods. 

Background 

The MOJ Portal commenced in 2010, initially dealing with RTA claims up to 10K, before being expanded in 2013 to its current format, claims up to £25,000 and including EL/PL. In the present-day world of multiple portals and platforms it is hard to imagine what a sea change the arrival of the MOJ Portal was for practitioners. Whilst it took a pandemic to modernise personal injury practice once and for all, the first steps to such modernisation started here. 

With this came new rules and a pre-action protocol (PAP), including a bespoke procedure for protection from limitation – whilst this was the case for RTA, EL and PL, for the purpose of this article we are concentrating on RTA only. Paragraph 5.7 of the PAP for low value personal injury claims sets out the procedure, as follows:-

5.7 Where compliance with this Protocol is not possible before the expiry of the limitation period the claimant may start proceedings and apply to the court for an order to stay (i.e. suspend) the proceedings while the parties take steps to follow this Protocol. Where proceedings are started in a case to which this paragraph applies the claimant should use the procedure set out under Part 8 in accordance with Practice Direction 49F (“the Stage 3 Procedure”).

Rather than set directions or list for a directions hearing, as you would in the Part 7 regime, issue in this instance leads to a stay of proceedings. With only the Claim Form being necessary at point of issue, there was no requirement to serve medical evidence obtained to date, or even tell the Defendant what evidence has been obtained or what special damages will be pursued. For quite a considerable period, Defendants have been prejudiced and, without a provision in the rules to lift the stay, unable to do anything about it. This was in part caused by paragraph 5.8:-

5.8 Where the parties are then unable to reach a settlement at the end of Stage 2 of this Protocol the claimant(our emphasis) must, in order to proceed to Stage 3, apply to lift the stay and request directions in the existing proceedings.

This led to years of application hearings in the lower courts – the Defendant applying to lift the stay, for something the rules did not allow for, if for no other benefit than airing the issue before the courts so that judges were aware of the lacuna. Two cases of note – Lyle v Allianz and Cable v LV – gave hope to Defendants that their position was going to be addressed. 

In Allianz, the decision at first instance was to strike out a claim pleaded at more than £200,000, after over six years of delay. HHJ Pearce then upheld this decision in the High Court, stating that the level of abuse could not be compensated only in costs. LV was initially also struck out, but the Claimant appealed the decision. The Court of Appeal then restored the claim and dealt with the abuse point in costs – liability was admitted and with the claim worth £2.2 million, on balance it was felt there was too great a prejudice to the Claimant to strike out the case. 

This decision led to further years of poor behaviour, unlimited stays being granted, rubber stamped extensions and refusal to disclose medical evidence (although Defendants were able to use the case to transfer to Part 7, often with significant costs consequences for the Claimant). The pandemic did not help this process as judges (and some lawyers) were only too happy to push cases down the track, with a great many hearings adjourned. Eventually, earlier this year another case reached the Court of Appeal which would have significant ramifications for portal claims. 

MH Site Maintenance v Watson [2025] EWCA Civ 775 

On the 10^th June 2025, Lord Justice Coulson, LJ Holgate and Lady Justice Andrews presided over the appeal hearing. The particular issue in Watson was whether it was within a courts power to order a Claimant to return to a pre-action step, as the Defendant solicitor had worded their application such that if the Claimant did not serve a Stage 2 pack within 21 days, the matter should stand struck out. 

At first instance, the decision went against the Defendant, with the Court saying that they could not order a pre-issue step to be revisited. Then it seemed to get worse as the matter was transferred to Part 7 (due to a late interim payment which under the rules automatically removed the case from the portal) ahead of the case being appealed to the Court of Appeal. This led to claims that the appeal itself was 'academic' – with the case already out of the portal process. The counter argument from the Defendant was that the Claimant had actually jumped too soon and calculated the date the interim was due incorrectly – so in essence, the matter should never have left the portal and the appeal was not academic. 

The Court of Appeal agreed with this and then found a way to get over the point concerning returning to a pre-action phase – they decided that, where a claim form had been issued, whether Part 7 or Part 8, the court had jurisdiction to order compliance with a pre-action protocol.

The implications of the case may extend to the following:- 

•       Reducing unnecessary stays on the MOJ Portal 

•       The end of unlimited stays 

•       Maximum length of initial stay likely to be 12 months

•       No rubber stamping of applications to extend the stay – must be a hearing 

•       Likely to be applicable in OIC limitation cases (where we are currently seeing 12 month stays)

•       Helpful in applications for abuse of process

•       Greater visibility of ballooning of cases such as chronic pain, brain injury etc

•       Earlier disclosure of medical evidence 

•       Greater chance of success in applications to lift stays, if made within the liberty to apply period

Will this make Claimants less likely to succeed in arguments they can skip the portal? 

Skipping the MOJ Portal means that the Claimant must hold a reasonable belief that the value of their claim exceeds £25,000. This is sometimes obvious in the face of a catastrophic incident where the Claimant is incapacitated at the point of when the Claims Notification Form (CNF) is submitted. One way of doing this is to submit an old-style 'letter of claim' at commencement rather than a CNF, immediately setting out that the portal will not apply and nor will the cost provisions. 

There are really two questions here – will Watson make it more or less likely that Claimants will attempt to skip the portal and whether it will make Claimants more or less likely to succeed in skipping the portal. 

The first question I would have to say yes – with claims incubation becoming more difficult within the portal, certainly for any significant length of time, the chances of a Claimant starting the claim in the portal and then a year after limitation sending five medical reports and a large schedule of loss being deemed reasonable behaviour are probably gone, although that isn't to say it won't still happen with some firms. Claimants may be more likely to try and avoid the portal all together as there won't be the benefits of very long incubation periods (such as keeping the Defendant from investigating and making protective offers). 

As to the second question, whether it will make Claimants more likely to succeed in avoiding the portal, that could go in either direction. On the one hand, Claimants can point to the criticism they receive for leaving cases with potential in the portal and say they had little choice than to commence with a letter of claim as they may have been criticised otherwise. On the other, if they don't have a reasonable belief in the claim exceeding £25,000 they will have to commence the claim in the portal and could be forced to disclose medical evidence and a schedule of loss at an earlier stage, giving the Defendant a proper indication of what the claim could be worth and opportunities for settlement. 

Will the decision streamline settlements? 

This depends on the behaviour of both parties. Claimants were criticised in the judgment for failing to disclose medical evidence that had been obtained years before, so claims being stayed for an unlimited duration are just not going to be acceptable going forward. You would expect that in nearly every case medical evidence will be disclosed within a few months of limitation at the latest – cycle times should therefore come down. 

Also, it may prevent Claimants incubating and trying their luck with numerous medical reports in the first place.  Will litigation strategies shift? There is less likely to be poor behaviour in this section of the market so potentially, yes. Less layering of medical evidence is a possibility as Claimants look to reduce cycle times. But, we have seen time and again that lawyers are nothing if not inventive – the effects of the decision are likely to take a while to filter down so as usual, watch this space.