Background
The claimant was involved in an RTA in June 2023. A claim was submitted via the OIC Portal, to which the defendant accepted liability but disputed causation due to the low velocity of the accident.
The claimant submitted medical evidence from a GP; however, the report did not address the causation concerns raised by the defendant. The defendant highlighted the non-compliant medical report, emphasising its failure to address causation. Consequently, the defendant had no alternative but to maintain disputing that the accident caused any injury.
The claim was removed from the OIC Portal by the defendant due to a lack of response from the Claimant's Solicitor. A compliant medical report was then provided by the claimant so the defendant accepted causation.
Hearing
The matter proceeded to a Disposal Hearing.
The defendant argued that the claimant's conduct was unreasonable so CPR 45.29M (as it was prior to 1 October 2023) should be engaged to restrict the claimant's costs to those commensurate with the Small Claims Track. The Court accepted that submission and reduced the claimant's costs accordingly.
What this means for insurers?
The outcome importantly shows that the Courts will sanction Claimant Solicitors for circumventing the OIC by disallowing their costs. This is a strong warning not to circumvent the OIC.
Insurers should always be live to Paragraph 7.9 of the Protocol in claims where low velocity is an issue, and the medical report should be reviewed in detail to ensure it adequately addresses causation. If the report fails to deal with causation, there is no option (short of calling the OIC helpline) to re-submit a compliant report so the claim will have to exit the process due to the conduct of the Claimant.
Due to that unreasonable conduct the claimant's costs should be capable of reduction to those that would have been payable had the medical report been compliant. This claim also serves as an important reminder that to engage CPR 45.29M judgment must be entered.
Commenting on the court’s decision Glen Eastwood Ageas UK Head of PI and Technical Claims said:
“The Pre-Action Protocol for low value personal injury claims (Whiplash reforms) allows our customers to raise their concerns if they believe that they did not cause the injuries alleged by the claimant.
“Where a Claimants Solicitor does not follow the correct procedure, as in this case, there is no commentary in the medical report and so the medical expert does not hear our customers’ concerns about the claim being presented against them. This practice falls outside the rules.
“We are pleased the court agreed that the rules had not been followed and therefore the claimant’s representatives should not be entitled to their costs.”
