1. Suitability of the Portal
1.1. General Considerations
The RTA Protocol, as its full name suggests applies only to road traffic accidents which results in personal injury. Paragraph 4.1 states:
‘This Protocol applies where—
(1) a claim for damages arises from a road traffic accident where the CNF is submitted on or after 31st July 2013;
(2) the claim includes damages in respect of personal injury;
(3) the claimant values the claim at no more than the Protocol upper limit; and
(4) if proceedings were started the small claims track would not be the normal track for that claim.’
The accident must have occurred on a highway or other public place in England and Wales (paragraph 1.1 (16)) and the duty owed must arise from the use of a mechanically propelled vehicle intended for the use on a road (s. 185 Road Traffic Act 1988). This limitation is important given recent increases in claims involving cyclists in collision with pedestrians. Such claims would fall outside the scope of the RTA Protocol.
There are, however, other factors which determine whether the RTA Protocol is the appropriate method for intimating a claim. The RTA Protocol does not have retrospective effect and as such applies only to accidents which occurred after 30 April 2010 (paragraph 1.2).
The RTA Protocol, pursuant to paragraph 4.5, also expressly excludes claims:
in respect of a breach of duty owed to a road user by a person who is not a road user;
made to the MIB pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent or supplementary Untraced Drivers’ Agreements;
where the claimant or defendant acts as personal representative of a deceased person;
where the claimant or defendant is a protected party as defined in rule 21.1(2);
where the claimant is bankrupt; or
where the defendant’s vehicle is registered outside the United Kingdom.
Although the RTA Protocol expressly exclude protected parties this clearly does not debar injured children/protected parties utilising the fast access to justice offered by the RTA Protocol. This is made clear by the inclusion of specific rules controlling costs and interim payments for child claimants. Paragraph 6.6 expressly allows a parent or guardian to sign a CNF on behalf of a child and provisions relating to need for and suitability of a litigation friend under CPR r.21 will apply to subsequent proceedings under Part 8.
The exclusion of non-UK registered vehicles is also important when considering the volume of European registered vehicles on UK roads. Interestingly, there is no specific prohibition on commencing claims via the RTA Protocol where two UK registered vehicles are involved in an accident outside the UK.
1.2. Claim Value
1.2.1. Upper Limit
Claims intimated via the RTA Protocol must have a value of no more than the upper limit as set out in paragraph 1.2:
The ‘Protocol upper limit’ is—
£25,000 where the accident occurred on or after 31 July 2013; or
£10,000 where the accident occurred on or after 30 April 2010 and before 31July 2013,
on a full liability basis including pecuniary losses but excluding interest.
This figure is calculated on a full liability basis and is based on the total for both general and special damages. The quantum figures utilised are assessed by the claimant’s reasonable belief as to the claims value. It is, however, incumbent on the claimant to make an accurate assessment of the claims value or to notify the defendant as soon as their reasonable belief on value changes.
In Lyle v Allianz Insurance Plc (Liverpool CC 30 November 2017) the claim was commenced within the RTA Protocol and due to limitation Part 8 proceedings were issued and a stay applied. The value of the claim was initially believed to lie within the RTA Protocol limits but subsequently, whilst the stay was in place, it became clear that the value was significantly higher. The claimant, however, took no action to lift the stay or notify the defendant as to the increased value until the passage of 2 years. The claim was struck out and the claimant’s appeal was refused by HHJ Pearce.
The value, however, excludes vehicle related losses pursuant to paragraph 4.4:
‘A claim may include vehicle related damages but these are excluded for the purposes of valuing the claim under paragraph 4.1’
It is notable that the RTA Protocol applies a wide approach to the interpretation of vehicle related damage when considering quantum and paragraph 1.2 (18) of the RTA Protocol provides the following:
‘vehicle related damages’ means damages for—
the pre-accident value of the vehicle;
vehicle insurance excess; and
This distinction potentially results in claims with significant value being dealt with via the RTA Protocol. Although there is often a correlation between the severity of the vehicle damage and the injury sustained, modern vehicles provide increasing levels of protection to their occupants and are designed to dissipate impact forces around the vehicle. Vehicle damage can often, therefore, overshadow an injury award. This issue is further exacerbated where a claimant hires a replacement vehicle on credit. Many credit hire practitioners would not be surprised to see claims for replacement vehicles totalling £30,000, £40,000 or over. Theoretically, as a consequence of paragraph 4.4, claims with a total value far in excess of the multi-track limit could proceed via the RTA Protocol to a 20 minute hearing in a block list before a District Judge.
Although Lord Justice Jackson, in the judgment of Philip v Willis  EWCA Civ 401, confirmed that credit hire claims could and should be dealt with via the RTA Protocol, he eluded to the likely distinction with claims involving ‘very high credit hire’ which might be considered unsuitable for the portal due to complexity of law or fact. The fact that the portal is not intended to deal with high value cases is further supported by his judgment at paragraph 9:
‘This modified procedure is designed to minimise the expenditure of further costs and in the process to deliver fairly rough justice. This is justified because the sums in issue are usually small, and it is not appropriate to hold a full blown trial’
It is worth noting that complexity as a reason for not pursuing a claim via the portal is not considered until Stage 2 at paragraph 7.76. It is, therefore, arguable that complexity does not impede a claim being commenced via the RTA Protocol if it fits with the parameters set out at paragraph 4.1 of the RTA Protocol.
1.2.2. Lower Limit
Paragraph 4.1 (4) confirms that the RTA Protocol is not suitable for claims where, if proceedings were commenced, the normal track would be the Small Claim Track. As such, claims which fall within the parameters of CPR r.26.6 should be commenced as a small claim and not via the RTA Protocol. With reference to a personal injury claim, any injury likely to recover over £1000 would be suitable for the RTA Protocol. It is, therefore, fair to say that most cases involving injury would fall to be intimated via the RTA Protocol. It remains to be seen what changes will occur when the small claims limit is increased.
The fact that a claim is valued over £1000 is based on the claimant’s reasonable belief at the point the claim is intimated as made clear in paragraph 5.9:
‘Where the claimant reasonably believes that the claim is valued at between £1,000 and the Protocol upper limit, but it subsequently becomes apparent that the value of the claim is less than £1,000, the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs’
This issue was explored in the first instance judgment of Bromley v Hewson (Medway County Court, 06 September 2012) where a child claimant received less than £1000 damages. The Court concluded that the case remained suitable for the RTA Protocol because it was not evident at the outset that the value was ‘plainly’ less than £1000. Portal costs were, therefore, awarded.
The time limit for commencing personal injury claims is prescribed by s.11 (4) of the Limitation Act 1980 and requires claims to be commenced within 3 years from the date the cause of action accrues (i.e. the date of the road traffic accident) or less commonly in road traffic accidents from the date of knowledge of the injured person1. This limitation period applies to claims irrespective of compliance with the RTA Protocol and irrespective of the value of the claim intimated.
Where limitation is about to expire and the parties have not been able to complete Stage 1 and 2 of the RTA Protocol proceedings must be issued under CPR Part 8 to avoid being statute barred. It is then necessary to apply for a stay of proceedings so that the RTA Protocol procedure can be progressed (paragraph 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 in which this paragraph applies the claimant should use the procedure set out under Part 8 in accordance with Practice Directions 8B (the Stage 3 Procedure)’
This position is mirrored within CPR PD 8B para.16.1 which confirms:
‘Where compliance with the relevant protocols is not possible before the expiry of a limitation period the claimant may start proceedings in accordance with paragraph 16.2’
When issuing Part 8 proceedings in these circumstances the Claim Form must confirm, pursuant to CPR PD8 para.16.2, that
‘(a) the claim is for damages; and
(b) a stay of proceedings is sought in order to comply with the relevant Protocol.’
Although, CPR PD8B para.16.3 confirms that a claimant must send to the defendant a copy of the Claim Form and the Court Order staying proceedings no time frames are prescribed by CPR Part 8. In the case of David Grant v Dawn Meats  EWCA Civ 2212 the Court of Appeal considered the effect of a stay granted in a claim commenced within the Pre-Action Protocol for Low Value Employers and Public Liability) Claims (EL/PL Protocol) on a parties obligations under CPR PD8B para.16.2 and CPR r.7.
In this case, the claimant suffered personal injuries following an accident at work and despite liability being admitted at Stage 1 of the Protocol procedure settlement proved impossible. Part 8 proceedings were issued in June 2016 due to limitation concerns and a stay was requested and granted by the Court. Service of proceedings did not occur until well outside the usual service deadline under CPR r.7.5. The defendant applied for a declaration that service had not been effective. If successful the defendant’s application would debar recovery of damages because compliance with CPR r.7.6(3), governing extensions for service of the Claim Form, would be impossible and any new proceedings would face both a limitation defence and the procedural hurdles imposed by s.33 of the Limitation Act 1980. The defendant’s application was rejected by DDJ Davy at first instance and approved by HHJ Gore QC on appeal. The matter proceeded to the Court of Appeal and the Lord Justices provided useful guidance on the overreaching effect of a stay on proceedings. LJ Coulson, in the leading judgment, concluded that a stay had the effect of ‘freezing’ all aspects of the proceedings and that ‘no steps in the action, by either side, are required or permitted during the period of the stay’.
This approach is supported by the glossary to the CPR which provides the following definition:
‘A stay imposes a halt on proceedings, apart from taking any steps allowed by the Rules or the terms of the stay. Proceedings can be continued if a stay is lifted.’
Although David Grant v Dawn Meats relates to a different specialist protocol, paragraph 5.7 of the EL/PL Protocol includes identical provisions on limitation to those contained within the RTA Protocol. The Judgment, therefore, arguably has universal application across both Protocols.
It is, therefore, clear that as long as proceedings are issued and a stay obtained prior to the expiry of limitation the defendant will accrue no defence under the Limitation Act 1980 and there will be no obligation to serve proceedings until the stay expires or is lifted by request.
Once the stay is lifted the procedural position reverts back to the moment when the stay was first imposed. The claimant’s service obligations recommence and the service deadline is calculated against the time left from the time limits prescribed by CPR r.7.5
3. Claims Notification Form
3.1. Commencing a Claim
A claim is commenced by submitting a Claims Notification Form (CNF) to the defendant’s Insurer, usually electronically via www.claimsportal.org.uk (the Portal) and a Defendant Only CNF to the defendant by first class post (paragraph 6.1).
An oddity of the RTA Protocol is that a defendant is ordinarily defined as ‘the insurer of the person who is subject to the claim under this Protocol’. Exceptions to this definition are, however, contained within paragraph 1.1 (10) which confirms that where the context dictates a defendant can be identified as:
the person who is subject to the claim;
the defendant’s legal representative;
the Motor Insurers’ Bureau (‘MIB’); or
a person falling within the exceptions in section 144 of the Road Traffic Act 1988 (a “self-insurer”).
Given the distinction made between the defendant’s Insurer and the defendant in paragraph 6.1, it would appear that the RTA Protocol envisages that the Defendant Only CNF should be served on the tortfeasor. The only express exception to this requirement is contained in paragraph 6.1(2) where a Defendant Only CNF is not required if the defendant is self-insured.
No guidance is given within the RTA Protocol governing the address required to effect service of the Defendant Only CNF and what happens when the defendant’s address is unknown.
CPR r.6 provides rules controlling service within litigation and draws a distinction between service of a Claim Form and other documentation. Only when considering service of a Claim Form does the CPR provide guidance on what steps are required when an appropriate address is unknown (CPR r.6.9). No similar provision exists within the CPR for the service of documents other than the Claim Form. This is primarily because a party to proceedings has a duty under CPR r.6.23 (1) to provide an address suitable for service.
The Pre-Action Protocol for Personal Injury Claims draws an association between the CNF and a Letter of Claim at paragraph 5.5:
‘Where a claim no longer continues under either Low Value Protocol, the CNF completed by the claimant under the Protocols can be used as the Letter of Claim under the Protocol unless the defendant has notified the claimant that there is inadequate information in the CNF’
Recent cases have sought to elevate the importance of the CNF to that of a document akin to a Claim Form but the Courts have stopped short of making that direct comparison. It is, therefore, unlikely that CPR r.6.9 applies to Defendant Only CNFs.
It is also difficult to see how the requirement to serve a Defendant Only CNF on the tortfeasor meshes with the direct right of action against an RTA Insurer pursuant to r.3 European Communities (Rights against Insurers) Regulations 2002. This inconsistency is further heightened by the fact that the Defendant’s address is not a mandatory field on either the CNF or Defendant Only CNF.
In the broadest interpretation of 1.1(10) (a) the Insurer could be ‘the person who is subject to the claim’ where a claimant is exercising their direct right of action. This would require the claimant to commence their claim by sending two almost identical CNFs to the insurer which would seem a somewhat redundant obligation.
The CNF contains both mandatory and voluntary information deemed necessary to allow a defendant to investigate the claim presented and make a determination on liability. Paragraph 6.3 requires all mandatory fields to be completed and establishes an expectation that the claimant will make reasonable attempts to complete the voluntary sections.
‘All boxes in the CNF that are marked as mandatory must be completed before it is sent. The claimant must make a reasonable attempt to complete those boxes that are not marked as mandatory’
A failure to complete mandatory information by the claimant allows the defendant to drop the claim from the Portal pursuant to paragraph 6.8 and exposes the claimant to cost risk pursuant to CPR r.45.24:
‘where the defendant considers that inadequate mandatory information has been provided in the CNF, that shall be a valid reason for the defendant to decide that the claimant should no longer continue under this Protocol’
When the RTA Protocol was first devised contention existed between insurers and claimant advocates regarding the nature and extent of the information considered voluntary. This primarily centred on the failure to make the name of the claims management company compulsory as many insurers had concerns with the link between claims farming and fraudulent claims.
As a direct response to these fraud concerns the RTA Protocol was amended and access granted to claimant to the Claims Underwriting Exchange (CUE) via a web based portal called www.askCUE.co.uk. This database, populated by most insurers, provides details of previous personal injury claims registered with the DWP for a CRU certificate. Although Insurers have had unilateral access for many years, the move to grant access to claimant representatives was designed to assist in the completion of informed risk assessment by claimant solicitors before claims are intimated.
The requirement to interrogate CUE is compulsory pursuant to paragraph 6.3A (1). Where a CNF is submitted which does not include the necessary reference number the defendant can request a corrected CNF (paragraph 6.3A (2)) or can agree to dispense with re-service (paragraph 6.3A(3)). Where re-service is required the timeframes under the RTA Protocol do not commence until the corrected CNF is re-served.
3.2. Status of a CNF
The status of a CNF is not defined within the RTA Protocol. Where a claim falls from the Portal, the CNF takes the place of the Letter of Claim (paragraph 6.27). Paragraph 5.7 of the Pre-Action Protocol for Personal Injury Claims (PI Protocol) confirms:
‘Letter of Claim and Response are not intended to have the same formal status as a statement of case in proceedings. It would not be consistent with the spirit of the Protocol for a party to ‘take a point’ on this in the proceedings, provided that there was no obvious intention by the parties who changed their position to mislead the other party’
There are, however, marked differences between the two documents. A claim within the RTA Protocol could conceivably be intimated and settled with the CNF being the only formal document provided to the defendant.
In Richards & Anor v Morris  EWHC 1289 (QB), Mr Justice Martin Spencer, introduced his judgment with the following observation:
‘CNFs are important documents because not only are they the first notification of a claim to the potential defendant’s insurer in low value personal injury claims in road traffic accidents where the damages sought are between £1,000 – £25,000 but also they will often be the basis for early settlement of the claim’
Importantly a CNF is also supported by a statement of truth either signed the claimant’s representative:
‘The claimant believes that the facts stated in this claim form are true. I am duly authorised by the claimant to sign this statement.’
Or the claimant:
‘I am the claimant. I believe that the facts stated in this claim form are true.’
This wording is identical to the prescribed wording for statements of truth in CPR PD.22 2.1 and 2.2.
A false statement on a document verified by a statement of truth without an honest belief in its truth exposes the signatory to the risk that Contempt of Court proceedings could be brought pursuant to CPR r.32.14 (1).
‘Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’
This obligation is imposed irrespective of whether the statement of truth is signed by the claimant or his legal representative (CPR PD22 para. 3.8(3)). A CNF is not a category of document expressly identified in the CPR PD22 as requiring validation by a statement of truth. CPR PD22 para.1.1 is arguably not an exhaustive list it does not automatically follow that CPR r.32.14 would not apply to documents created under the RTA Protocol due to their absence from the list.
In Liverpool Victoria Insurance Company Limited v Yavuz and Others  EWHC 3088 (QB) the High Court flirted with the potential for contempt proceedings stemming from a false CNF. The case related to an application for order of contempt made by Liverpool Victoria Insurance against 9 claimants accused of being part of a ‘crash for cash’ conspiracy. In his obiter comments Mr Justice Warby stated:
‘It may be arguable therefore that a false and dishonest statement in a CNF in Form RTA1 could found an application to commit for contempt, but it cannot be said that the matter is free from doubt. To say that the court “will expect” compliance with a PAP is not necessarily equivalent to saying that parties must comply. The General PAP states that parties who do not comply may be asked for an explanation, and warns of costs consequences, but not of the prospect of contempt proceedings’
In Richards & Anor v Morris, Mr Justice Martin Spencer took a stricter view that the CNF did provide the basis for possible proceedings for contempt of court.
In Molodi v Cambridge Vibration Maintenance Services  EWHC 1288 (QB) inconsistencies between the CNFs and the claimant’s witness evidence led to a finding of fundamental dishonesty and dismissal of the claim. Inaccuracies in the information contained within the CNF relating to the claimant’s injuries, vehicle damage, occupants and rehabilitation needs were instrumental in the judgment and dismissal. Although potentially an extreme example of the potential problems with a CNF, the judgment arguably elevates the CNF to a level comparable with a Claim Form and has seen favour amongst District Judges considering cases in lower courts.
What is clear, therefore, is that a defendant and the Court is entitled to rely on the contents of the CNF as being true and that mistakes within the CNF expose the claimant to allegations of fundamental dishonesty and contempt.
The RTA Protocol requires confirmation of a claimant’s rehabilitation needs within the CNF and advocates adherence to the Rehabilitation Code. Section C of the CNF requires a claimant to confirm both whether treatment has been recommended already by a medical professional and whether the claimant is aware of any other rehabilitation needs. Often, a CNF is produced before the finalisation of medicolegal evidence and as such the CNF requires a claimant to make an informed prediction of his needs. It is notable that the Rehabilitation Code places the duty to make that initial assessment of the claimant’s need on the claimant’s solicitor. It does, however, also place an expectation on the compensator that they will consider the claimant’s rehabilitation needs throughout the life of the claim.
When considering offers of rehabilitation the claimant should weigh their options carefully and must act reasonably. Ordinary rules of mitigation apply to damage claims within the RTA Protocol, as such the burden rests on the defendant to prove that there has been a failure to mitigate:
‘it is settled law that the onus of proving that a claimant failed to mitigate his damage lies on the defendant to show that the claimant ought, on the facts, reasonably to have pursued some course of action which he did not in order to mitigate his loss’ Samuels v Benning  EWCA Civ 858.
A Courts assessment of whether a claimant has acted unreasonably and failed to mitigate their loss is a matter of fact and, therefore, beholden to the discretion of the Judge. Both parties need to be aware of the balance of risk in assessing mitigation when considering offers of rehabilitation.
5. Defence Response
The RTA Protocol imposes two initial responsibilities on the defendant:
Paragraph 6.10 – ‘The defendant must send to the claimant an electronic acknowledgment the next day after receipt of the CNF.
Paragraph 6.11 – The defendant must complete the ‘Insurer Response’ section of the CNF (“the CNF response”) and send it to the claimant within 15 days’
In reacting to the CNF a defendant has 6 potential responses, they can:
make an allegation of contributory negligence (other than related to seat belts);
fail to respond;
notify the claimant that the value falls below the small claims limit; or
allege that there has been a failure to complete mandatory information on the CNF.
Unless a defendant, within 15 days of receiving a CNF, admits liability (and any allegation of contributory negligence is limited to a failure to wear a seat belt) the claim will automatically exit the portal (paragraph 6.15).
A failure to electronically acknowledge a CNF does not cause the claim to automatically exit the RTA Protocol despite the mandatory character of paragraph 6.10. This interpretation is supported by Mr Recorder Morgan’s judgment in Jaykishan Patel v Fortis Insurance Ltd (Leicester County Court 23 December 2011) where a claimant’s decision to withdraw a claim from the RTA Protocol when a defendant failed to submit an acknowledgment was considered unreasonable.
Where a claim exits the RTA Protocol automatically at Stage 1 the claim falls to be governed by the PI Protocol pursuant to paragraph 6.17:
‘Where paragraph 6.15 applies the claim will proceed under the Pre-Action Protocol for Personal Injury Claims starting at paragraph 6.3 of that Protocol (which allows a maximum of 3 months for the defendant to investigate the claim) expect where paragraph 6.15(4)(a) applies the claims will proceed under paragraph 5.1 of that Protocol.’
As such unless the defendant has alleged that insufficient information is contained within the CNF this document will be viewed as the Letter of Claim and the defendant will have 3 months to investigate and respond on liability.
Where liability is denied the defendant must provide a brief explanation of their decision with their response (paragraph 6.16). Again there is no express sanction against providing a bear denial and, given that a defendant automatically has a further 3 months to provide a liability response once the matter exits the RTA Protocol, a failure to explain a liability decision is unlikely to be determinative in any conduct considerations by the Court.
1Assuming an adult claimant who is alive at the time the 3 year limitation period expires.