Q&As

If you have not responded to a head of loss claimed within the Portal, are you deemed to have admitted that head of loss?

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Produced in partnership with Daniel Laking of 39 Essex Chambers
Published on LexisPSL on 22/05/2018

The following PI & Clinical Negligence Q&A produced in partnership with Daniel Laking of 39 Essex Chambers provides comprehensive and up to date legal information covering:

  • If you have not responded to a head of loss claimed within the Portal, are you deemed to have admitted that head of loss?

For the purposes of this Q&A, it is assumed that the Portal referred to is the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA Protocol) from 31 July 2013 Portal and the associated CPR PD 8B.

The RTA Protocol does not expressly set out the consequences of a failure to respond to a head of loss. However, the following paragraph are helpful in interpreting the likely outcome:

‘7.38 Within the initial consideration period (or any extension agreed under paragraph 7.36) the defendant must either accept the offer made by the claimant on the Stage 2 Settlement Pack Form or make a counter-offer using that form.’ (our emphasis in bold)

The RTA Protocol envisages that a defendant will either accept the offer or make a counter-offer during the Stage 2 process. A failure to respond to the claimant’s offer is likely to be construed as a party not having any counter-offers to put forward, and therefore an admission of the sum claimed.

This interpretation is also supported by the following paragraph:

‘7.41 When making a counter-offer the defendant must propose an amount for each head of damage and may, in addition, make an offer that is higher than the total of the amounts proposed for all heads of damage. The defendant must also explain in the counter

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