Main PI changes April 2015: CPR, protocols and legislation

A raft of civil reforms came into force on 6 April 2015 which affect Personal Injury practitioners. We have summarised the main changes which include amendments to CPR Part 36 rules, revised protocols in personal injury and clinical negligence, changes to recovery of costs for infants and protected parties and the introduction of MedCo for the instruction of experts in whiplash claims.

Why all these changes?

The latest reforms are two years after Lord Jackson's overhaul of the civil justice system. Some of the latest changes are an attempt to streamline and improve tricky areas of the Civil Procedure Rules 1998, SI 1998/3132 (CPR) while others are part of the government's ongoing efforts to limit the cost of litigation.

Part 36 reforms

A detailed guide to the New Part 36 can be found here where Practitioners can download an Annotated Guide to the New Rule by Ed Pepperall QC in addition to LexisNexis Practice Notes tracking the changes.

General changes to the New Part 36 include:

• time limited offers are treated as automatically withdrawn on expiry of the acceptance period (provided it is longer than 21 days) if not yet accepted
• in split trials, you can now communicate to the trial judge the existence of a Part 36 offer in relation to a decided issue, however you may not communicate the terms of such offer except in the limited circumstances set out in new rule 36.16
• if the offeror withdraws or adversely varies the Part 36 offer during the relevant period, you can still accept it provided you do so in the relevant period (although the offeror can then apply to court for permission to withdraw/adversely vary)
• in determining whether it would be 'unjust' to make the costs orders under new rule 36.17 (unaccepted Part 36 offers) the court is now required to consider whether the unaccepted Part 36 offer was a 'genuine attempt to settle'

PI-specific CPR rules have been grouped together:

• periodic payments (CPR Part 36.18)
• provisional damages (CPR Part 36.19)
• deduction of the Compensation Recovery Unit (CRU) (CPR Part 36.22)

Pre-action protocol for low value personal injury claims in road traffic accidents

The latest instalment of the government's war on whiplash sees the introduction of MedCo, a portal described as a 'new system for sourcing medical reports in soft tissue injury claims brought under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents'.

It will no longer be possible for claimant lawyers to source reports from an individual or organisation with which they have a financial link.

Practitioners can access our document setting out and examining the contentious and hotly debated MedCo portal here.

The two main changes are:

• for all claim notification forms (CNFs) sent on or after 6 April 2015, the first report in a soft tissue injury (whiplash) claim must be a fixed cost medical report commissioned via the MedCo portal from experts who have been accredited, and selected via MedCo
• with effect from 1 January 2016 medical experts must be accredited by MedCo in order to provide the initial fixed cost medical report in a soft tissue injury claim

Pre-action protocol for personal injury claims

Although the revised protocol will look familiar to practitioners there have been a number of significant amendments in the new version which include:

• greater clarity on when cases fall under the PI protocol having exited either of the low value portals
• strengthened sections dealing with noncompliance, the status of letters of claim/response and the quantum information which needs to be provided by the claimant
• confirmation that the protocol applies to litigants in person and that defendants should provide their own version of events and supporting documentation where liability is denied

Pre-action protocol for the resolution of clinical disputes

The protocol has been updated and streamlined. Express reference is now made to the duty of candour and apologies. A letter of notification stage has been added as has a stocktake section. Sections on rehabilitation, ADR and finance have been updated.

Part 21 - costs recoverable by children and protected parties

Changes have been made to CPR Part 21 to address issues that arose with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in that claimants can no longer recover success fees under a conditional fee agreement, that was entered into on or after 1 April 2013, from the defendant.

What further information is available?

Further information on any of these changes can be found in the following Practice Notes (Click here for a free trial):

• Part 36 reforms: see Practice Notes New Rule 36 v the existing CPR 36 rules - table of changes (Available to blog readers here) and LexisPSL PI subscribers can see Part 36 Offers (on or after 6 April 2015)
• low value RTA protocol: see Practice Note Latest whiplash reforms - MedCo from 6 April 2015 (Available to blog readers here)
• pre-action protocol for personal injury claims: LexisPSL PI subscribers can see Practice Note The pre-action personal injury protocol
• pre-action protocol for the resolution of clinical disputes: LexisPSL PI subscribers can see Practice Note The pre-action protocol for the resolution of clinical disputes: 6 April 2015 onwards
• Part 21 costs recoverable by children and protected parties: LexisPSL PI can see Practice Note Costs payable by children or protected parties

Is that it?

In a word - no! There are a number of new Acts coming into force over the coming weeks which personal injury practitioners will need to be aware of:

• Criminal Justice and Courts Act 2015
  • the PI relevant sections will come into force on 13 April 2015
• Social Action, Responsibility and Heroism Act 2015
  • this Act will apply to accidents on or after 13 April 2015
• Construction (Design and Management) Regulations 2015, SI 2015/51
  • these will replace the Construction (Design and Management) Regulations 2007, SI 2007/320 and come into force on 13 April 2015