Following the introduction of the claims portal in 2010, which was limited to RTA claims for £10,000 or less, the process has expanded up in value, and out in scope. As of July 2013, the portal now applies to employers’ liability and public liability claims up to £25,000. For defendants and compensator representatives alike, the portal is typically the first stage in any claims process.
With such high numbers of claims being handled within the portal, it seems inevitable that at some stage, someone was bound to click the wrong button. Towards the end of 2014, Birkenhead County Court dealt with just such a case, as David Maclaurin of Langleys Claims Services explains.
In the case of Draper v Newport (2014) the claimant was pursuing a claim following a road traffic accident which occurred in January 2013. The circumstances of which placed the claim firmly within the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. The claim was duly submitted via the portal, and the usual process followed whereby liability was accepted by the defendant, the claimant’s opening offer was submitted and the defendant in turn made a counter offer. However, when considering the counter-offer, the claimant’s solicitor, without instructions, clicked ‘yes’…twice, thus apparently accepting the offer.
Recognising her error, the claimant’s file handler wrote to the defendant’s insurer, within half an hour, to inform them of the mistake. The defendant’s insurer referred the matter to solicitors, and ultimately the claim progressed to hearing at Birkenhead County Court.
The issue put before the court was, effectively, whether a genuine mistake had been made by a party so as to give rise to the common law principle of mistake being inserted into the portal scheme.
District Judge Baker found against the claimant, in that the matter was settled within the portal. It was held that the doctrine of mistake cannot be and should not be imported into the rules-based scheme of the low value personal injury protocol.
In considering the issue, DJ Baker took into account the overriding objective; in that the Court is required to deal with a case justly and at proportionate cost. To introduce mistake into the portal protocol would present a risk of substantial satellite litigation: claimant and defendant representatives alike claiming to have pressed the wrong button at the wrong time. How could the mistake be measured? What would be the appropriate time limit within which to raise the issue? The portal protocols have been designed to impart a clear set of rules to expeditiously deal with claims. Allowing mistake within the portal protocol would introduce a degree of uncertainty and as DJ Baker puts it in his judgment, “uncertainty is what causes expense”.
DJ Baker described the portal as “a scheme which has been devised by lawyers for lawyers.” This is a helpful decision for claims handlers and lawyers using the portal and implies that both sides should be aware of the risk of making errors and committing to an outcome. Perhaps claimant and defendant representatives should abide by the same rule all carpenters are taught on day one: measure twice, cut once. Mistakes can be costly and it seems the Court will not make allowances for such mistakes within the claims portal.