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While the introduction of the EL / PL Claims Portal has undoubtedly saved costs for defendants and facilitated faster resolution of many claims, we are now in the routine use of this process, the flaws are now starting. to be seen.
Too often, we see plaintiff’s attorneys unable (or unwilling?) To serve the Stage 2 settlement files containing the medical report and special damages claims during prolonged periods of alleged inactivity. ‘Medical evidence is not yet completeis the usual response, or alternatively, the requester will simply ghost you and provide no response repeatedly.
Where liability is admitted, Part 8 of the Rules of Civil Procedure now allows for an automatic stay of proceedings at the usual three-year limitation period. At this point very few details are even given to the court and the case remains carefully under the radar, hidden in the portal process (legitimately or not). Add to this an infallible reluctance to share any appropriate development or advancement in treatment, and with no obligation to disclose medical records, we find insurers with allegedly accelerated cases on their books that are over three years old and are indefinitely remained with the vague intimation for the parties to write to reinstate if a settlement cannot be reached in due time.
There may be simple explanations – an applicant suddenly unconscious, a change in case manager and the neglected case, or the applicant having legitimately encountered delays in arranging expert exams without any medical evidence. has actually been requested to date. However, ignorance is no longer happiness. Essentially in these types of cases there are now no countdown limitations or disclosure requirements and the rules allow brazen exploitation of the system, totally defeating the true goals of the process, including payment. damages within a reasonable time. There may be a much more tactical reason to delay the release of any medical evidence or to confirm the true position.
It’s as simple as accepting that there won’t be a definitive prognosis by which to assess a claim if the claimant has been screened and has persistent symptoms and is not recovering. Any claim with symptoms beyond three years is expected to be of increasing concern, and the likelihood of spontaneous recovery is declining exponentially. In short, the plaintiff’s lawyer can hide a valuable claim in plain sight, and a beast can sit quietly in the dark portal waiting to ambush.
This post-statute-barred stay of proceedings does not put pressure on the plaintiff to show his hand and gives the defendant an opportunity to know what he may be up against. It has long been part of the overarching legal principles that a defendant should be aware of the true value and nature of the claim they are facing and that the plaintiff should serve the medical evidence requested to date, and at least one provisional schedule of losses with the claim form. The current process completely circumvents this and gives applicants more time and unnecessarily drags a case disproportionately once the limit is reached. A case can be left on the shelf with any superficial examination just signaling that the case is just waiting for finalized medical evidence hoping it arrives soon, when in fact the portal process is allowing the pot to slowly bubble.
Why would a claimant hide a file from an insurer? After all, the majority of portal claims are indeed low value expedited claims and are simply waiting for a report from the GP before settlement can be made. Unfortunately, no assumptions need to be made now and you should expect the worst and hope you are wrong. This is for the claimant to gain as much time as possible to explore whether a case can evolve into a more serious multitrack case, while retaining all information and control. Given the minimal details and often generic early-stage information included in claim notification forms at the onset of such claims, it is now increasingly difficult to correctly identify cases of significant potential and value.
Of course, it has long been possible to identify the basic features of a claim that can predict the development of a pain syndrome or more serious condition, but this required the information contained in the medical evidence requested to date. that were to accompany the Part 7 Claim Form when issuing the Three-Year Limit Proceeding. The problem is now that assessment is not routinely completed within that three year period, or at any stage until the applicant is ready. Unfortunately, it is now even more important that this analysis and investigation be undertaken as soon as possible so that continued aggressive objections to the default suspensions in Part 8 can be made.
Not recognizing the potential of just one of these nightmare cases at an early stage can set you up for a nasty surprise. A business can remain under-booked by hundreds of thousands of pounds. It is also true that, as these claims will stay alive longer, insurers will have to hold reserves for indefinite periods with no way of determining when this can be settled, as renewal quotes are likely to be impacted.
Appropriate steps are not taken to assist in the rehabilitation of the claimant, by making appropriate interim payments or by preventing the matter from escalating. Continued pressure must be exerted and the accused must take matters into their own hands. Targeted and reasoned requests should be made to lift the suspension of Part 8 and transfer the case to Part 7 – this allows the case to be handled properly and the defendant to regain control of the claim with the participation of the court.
Now is not the time to let a sleeping dog lie lest he slowly transform into a battle-scared werewolf, just waiting for the moon to be at its maximum before howling; a fair warning with Halloween just around the corner.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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