The Damages Claims Portal (DCP) – a discussion of the challenges faced by practitioners

What claims can be issued?

The scope and eligibility of the DCP is governed by Practice Direction 51ZB.

Paragraph 1.2 PD51ZB establishes a pilot to test an online “damages claims” process and that such claims are managed using the DCP.

The pilot applies to county court claims and runs from 28 May 2021 to 30 April 2024.

The pilot’s conditions

Paragraph 1.6 sets out the conditions for using the pilot. You must:

• register your firm to use MyHMCTS and secure access to the DCP, and
• give the defendant 14 days of your intention to issue the claim on the DCP, unless it is “impractical to do so”

Turning to the claim itself, the conditions stipulated in paragraph 1.6(3) PD51ZB must be met.

The defendant’s obligations

Under paragraph 1.9, provided the claimant has given the defendant at least 14 days’ notice of their intention to issue the claim on the DCP and the defendant has instructed a legal representative before the claim has started:

• (a) the defendant’s legal representative must—
  • (i) register with MyHMCTS and secure access to the DCP before the claim is started;
  • (ii) notify the claimant that they are instructed; and
  • (iii) provide the claimant with their email address for claim notifications; and

We are then told that:

• b) the claimant must—
  • (i) provide the defendant’s legal representative’s email address for claim notifications to the court using the DCP when starting the claim under section 2 of this Practice Direction; and
  • (ii) notify the claim to the defendant using the procedure set out in section 3 of this Practice Direction.

Current challenges with the DCP

Following mandation of the defendant response journey in September 2022, now is the ideal time to evaluate the pilot, look at the challenges presented to practitioners and suggest how these might be overcome.

From my experience, the biggest ongoing challenges are:

Defendant behaviour

The number of claims remaining in the portal beyond initial online issuing of the claim depends on the behaviour of defendants (including their insurance companies and legal representatives).

In my experience, many defendant organisations and insurance companies do not instruct legal representatives to accept service or defend claims until after the issuing of proceedings.

Often, the reason many claimant representatives take the step of issuing a claim is due to a lack of response or delay by the defendant.

The success of the DCP pilot in my mind requires a fundamental shift in behaviour by many defendant organisations.

Since the defendant response journey was mandated on 15 September 2022, only 1,896 DCP claims have been responded to. This equates to just 3% of the total claims issued as of 2 December 2022.

Whilst at the date these statistics were provided only four months have passed since defendant mandation, this perhaps explains this fundamental problem.

This is exacerbated by the fact that once a claim has exited the DCP, it cannot resume online at a later stage if a defendant legal representative is, for example, instructed post-issue but pre-judgment or defence.

As we move into 2023, we will have better insight on the volume of claims responded to on the DCP, as claimant representatives have four months to notify claims from the date of issue.

Only time will tell whether the 3% figure improves.

Many in the claimant representative sector – particularly in personal injury and clinical negligence – have made repeated calls for a list of defendant representative email addresses for notification of claims under the DCP.

Many defendant representative law firms are starting to create and share firm-wide generic email addresses for notification of claims to be sent to.

A protocol could be agreed between claimant and defendant representative law firms to work to an agreed list of notification email addresses for signatory law firms. Such a protocol could ensure the current PD51ZB requirements are met and increase the number of claims remaining within the portal.

Supervision and statements of truth

The conduct of litigation is a reserved legal activity under section 12(1)(b) of the Legal Services Act 2007.

Further, under Schedule 2 section 4(1)(a), the conduct of litigation expressly includes the issuing of court proceedings before any court in England and Wales.

The SRA’s updated guidance note on effective supervision updated in November 2022 advises that:

“Legal services providers should use a risk-based approach when deciding on appropriate supervision arrangements, such as who will supervise work, how many people they will supervise, how much of each person’s work a supervisor will see, how often they will communicate, and how far supervision will take place face-to-face rather than remotely.”

Factors to consider in making such decisions are said to include:

“whether there is a specific legal or regulatory requirement for those carrying out the work to be supervised by an individual with particular qualifications (for instance because the work includes reserved activities under the Legal Services Act 2007)…”.

Litigation is one of the most risk-heavy aspects of legal activity and supervision rightly needs to have a key role at this stage.

It therefore seems puzzling that consideration does not seem to have been given to how supervision could take place on the DCP.

Given that this is a reserved legal activity, one questions if the SRA was consulted in the design stage of the portal – and if not, why not?

In my view, the different categories of DCP user permissions (administrator access hierarchy) needs complete redesign.

There needs to be an administrator permission which enables oversight of all user access, as well as having visibility of all cases within the DCP in that organisation. The administrator should be able to list specific individual users as supervisors in that organisation.

The supervisor user should be able to add individual users within their organisation to their supervision view so they can always have visibility over their team or department’s work on the DCP. This represents supervision basics for a law firm to meet their regulatory requirements and must be rectified swiftly.

The supervision headache also merges with the statements of truth issue in the portal. The issuing of court proceedings is a risk-heavy stage in legal services. This is coupled with the potential consequences under Part 22, PD22 and Part 81 of the Civil Procedure Rules for statements of truth.

This is a particular worry for all compliance officers in law firms that use the DCP, since the legal representative signs the claim form on behalf of the claimant.

In addition, the current design of the DCP has also added a statement of truth requirement to what is effectively the Directions Questionnaire and, in doing so, has also changed the procedural rules and risk dynamic relating to this procedural stage.

The Civil Litigation Brief paints a stark picture of the perils of signing statements of truth on behalf of clients:

• “In signing a statement of truth on behalf of a client, therefore, the solicitor is making expressly, a statement that
  • They are authorised to sign the document.
  • That the solicitor has told the client that they would be confirming on the client’s behalf that the document was true.
  • That the client had been told of the consequences if the statement is untrue (which include the fact that the client could go to jail).”
• “If there is a dispute about the truth of a document a solicitor/client relationship is fraught with problems.
  • If the solicitor states that these steps were complied with then the client could be in serious trouble.
  • If the client states that these steps were not complied with then the solicitor (and potentially the client) could be in serious trouble.
  • If there is dispute about what information and advice the solicitor gave to the client then there could be a whole lot of trouble.

At the very least the advice and information given should be recorded in writing.”

Firms have had to think fast on their feet to ensure complaint processes that can mitigate risk in a portal system designed where the claimant does not see the online claim form before it is issued, and the legal representative is signing the statement of truth on behalf of the claimant.

Again, this raises the issue as to what consideration was given to the day-in day-out practicalities encountered by DCP users and, centrally, that of supervision and procedural, legal and regulatory requirements.

Current system pitfalls

There are many everyday gripes that litigators voice dismay at with the DCP. These include:

Settlement

There is currently no way to advise the DCP that a claim has settled. This is a particular problem if the claim settles between issue and notification and the DCP believes no further action has been taken.

This leads to unnecessary correspondence with the CCMCC to advise them of settlement so that they may then update the DCP.

The next stage of DCP development will include a facility for consent orders and Tomlin Orders.

In my mind however, the starting point should be an online facility to advise of settlement via Part 36 with a simple request that the claim then be stayed in accordance with Part 36.14(1) CPR.

Help with fees

There is currently no built-in process to apply for help with fees or fee remission.

With an extension of fixed costs and a challenging economic climate on the horizon, cashflow is more important than ever for law firms. This must be swiftly addressed.

Problems with information fields

The DCP lacks a statement of value narrative box that mirrors the N1 claim form.

Similarly, there is a lack of clarity regarding where to put the additional narrative for the name of a party who is the personal representative of an estate of a deceased individual.

This is coupled with the lack of clarity as to the date of birth requirement and whether this is the deceased’s or their personal representative’s date of birth.

Indeed, you may question why the date of birth is needed at all if it this is not generated on the claim form itself.

Notification headaches

Under sections 3 and 4 of PD51ZB, provided the claim has remained on the DCP post-issue, the claimant must notify the claim and claim details to the defendant’s representative.

This is essentially the equivalent of service of both the claim form and the particulars of claim (and other accompanying documents).

I understand from the Damages Claims Service’s recent webinar update that the notification stage is causing most issues for practitioners.

Many practitioners are either not fully appreciating that this is two distinct stages on the DCP or are providing the claim documents without formally completing the ‘notification of claim details’ step.

I have heard horror stories where claimant representatives receive an automated DCP email to advise their claim has been dismissed as they have not notified the claim details in time.

More troublingly, this is usually in scenarios where the defendant representative has confirmed receipt of the particulars of claim and other service documents through the DCP. It is vital that the DCP urgently investigate and tackle how this is occurring.

If this is not tackled swiftly, the civil court backlogs will grow due to a tsunami of relief from sanction applications on DCP claims.

In cases where the defendant representative has already confirmed receipt of the particulars of claim and other service documents in the required timeframe, it is frustrating for both parties that an application to the court is required which may delay claim progression and increase costs further.

The DCP should provide readily accessible examples of the automated emails that a user will receive after completion of each stage of the notification process. This will enable the user to easily check they have completed each of the notification stages.

It may also be beneficial to explore having an option on the DCP to complete both the notify claim and notify claim details stages at the same time should the practitioner so wish. This would match the current service provisions outside of the portal and what often happens in everyday practice.

What is the way forward?

The answer to me lies in collaboration.

I am pleased to be joining a new DCP working group being established by the Association of Consumer Support Organisations (ACSO).

This group is being formed because of a growing frustration amongst practitioners with everyday challenges being presented by the DCP. We believe many issues can be avoided by collaboration with practitioners using the DCP day-in day-out.

Regular focus group meetings should be held between practitioners and those responsible for designing, building and managing the DCP to discuss challenges and potential solutions. It is vital that this information is then shared with the profession and all DCP users.

I recommend the creation of a single website as a resource and help hub for DCP users as a central point for how-to guides, video tutorials and the latest Q&A documents.

The DCP is a great resource for law firms and litigators, let us hope the MoJ and HMCTS grasp this opportunity of assistance from the profession to make it even greater.

 

John Cuss is a solicitor and head of corporate services and strategic partnerships at Hudgell Solicitors. John is also vice chair of the Law Society’s Dispute Resolution Section Committee.

This article was written in early January 2023.