WHAT IS THE POINT OF THE PORTAL? INSURERS CONTACTING CLAIMANTS DIRECTLY: STILL
I post (with his permission) a letter from Kerry Kirkbride. It relates to the regular issue of insurers ignoring claimant solicitors and writing to claimants directly after notification on the Portal.
WHAT IS THE PURPOSE OF THE PORTAL?
“I am a claimant Personal Injury Lawyer and a Director of Active Legal.
I am writing to you as I am at my wits end as to who to contact, to find someone who actually cares, about the complete contempt shown by the insurance industry towards the legal system, protocols and the principles of justice.
I have recently submitted a CNF in respect of a matter that I have no reason to believe is fraudulent. It is claim for injuries sustained at work. Travellers Insurance are the appropriate insurers. The case in question currently presents itself as under £25000 and as such fixed costs apply.
I have attached for your benefit a copy of two letters I have received today from Travellers. I have spoken to the claimant and explained the situation and he is happy for me to disclose his name. [Those details are not reproduced on this blog].
I have telephoned Travellers to ask on what authority do they rely to entitle them to write these letters. The insurers are writing to my client direct emphasising Fraud, despite the CNF being submitted by a registered portal user and to me, his legal representative, requesting I provide a copy of the signed Form of Authority confirming our instruction. Furthermore adding :”A timely response to this request will prevent delay in considering the Claim”. I have been told by Travellers that this is a new pilot scheme they are running and that they are not alone as most insurers are now doing this.
The implications of this are:
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Travellers question our integrity and imply that clients may be the victims of fraud which immediately erodes the confidence of our clients in us. I have had to reassure my client I am not a fraudster and Active Legal are a legitimate firm.
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Travellers make direct contact with our clients despite being aware of our instruction and without our authority to do so or notifying us of their intention to do so
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Travellers use the word Fraud in bold twice which is a deliberate attempt to intimidate.
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Travellers imply that should we fail to respond to their request (which I believe they have no entitlement) then they will delay their consideration of the claim. This shows a total and deliberate contempt for the protocol.
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Travellers are asking for another layer of work under fixed cost cases when such work is unreasonable and unnecessary and any communication should be limited to the portal.
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Travellers are articulating, what I have been convinced has been happening subtly for a long time, that fraud is implied until proved otherwise. This is contrary to the burden of proof.
What is the purpose of the portal, registration under the portal system and the CNF statement of truth if we have to go beyond this and prove we are not fraudsters before Claimant’s claims can be investigated.
I would like to assume that the courts would support claimant’s if the protocol is unreasonably or deliberately breached and as in this case, where there is a clear intention by the defendants to not follow the timetable to respond unless we comply with their demands, in awarding costs against the Defendants or their insurers in respect of applications that necessarily follow but I have become so cynical by what has been allowed to happen over the last 2 years that I fear I am simply banging my head against a brick wall.
Do insurers have a legitimate right to demand this?”
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Let it exit the Portal on lack of insurer response and make sure that in the ensuing proceedings you emphasise that you are treating their allegations of fraud seriously Justifies moving to the Multi Track. If they settle with your client direct then on the Edmundson decision in the Court of Appeal they pay you in any event. Emphasise that you will be relying upon conduct to invite an order for costs on the indemnity basis
My first thoughts are:
(1) Financial Ombudsman complaint
(2) Serious consideration of libel action if they are persistently sending letter to Client
(3)(a) Suggest that approaching CL direct indicates preference by D to take claim out of portal and proceed accordingly
or
(3)(b) Ignore their extra hoops (obviously write to tell them you are not going to give them the extra info) and proceed outside of protocol when time is up
I would argue that CPR 45.13 applies in that the conduct of the insurer in alleging fraud amounts to “exceptional circumstances”.
Dear Gordon,
Perhaps Kerry should refer Travellers to the Claims Portal Behavioural Committee Guidance (found at http://www.claimsportal.org.uk/media/91275/BC1-direct-contact-with-represented-clients.pdf) which states âThe Behaviour Committee is clear that once an Insurer or other compensator is aware that a solicitor is acting there should be no contact with the claimant except through that solicitor. [â¦] The Behaviour Committee believes that it may be appropriate that Claimant Representatives should raise individual cases with the FCA and the Information Commissioners Office so that they aware of the concerns. It is then a matter for the regulator to considerâ.
Thanks,
Lee
Lee Kipling
Trainee Solicitor
t: 0191 276 1000 f: 0191 265 7969
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Can we see a copy of the two letters (with redactions, if appropriate)?
Hi Tim
Please contact me and I will send you copies with redactions.
Had another today from Aviva who have been notified on the Portal in respect of a pedestrian accident occurring in September 2015 and where the Claimant suffered a fractured leg. We have been asked to provide a copy of signed CNF (signed by the Claimant) or a form of authorisation to act from the client to enable Aviva “to consider your Client’s claim”.
oh and they are ….”Genuinely surprised to receive an injury Claim from your client at such a late stage as such claims are pursued within the first few weeks” and the “delay has compromised our ability to investigate and gather evidence”.
Clearly limitation now is less than 6 months!
In my opinion this is being done to escalate costs to justify the need for small claims limit to increase.