Far-reaching changes to PIAB legislation are set to create a whole new category of ‘high-risk cases’ that will run the gauntlet of becoming statute-barred – affecting applicants’ rights of access to justice.
As you may be aware, the or send a private investigator PIAB Act and PIAB rules after the claimant). Some are changed drastically from 4 September 2023 by virtue of the implementation of the Personal Injuries Assessment Board Resolution Act 2022.
The result is that, if a personal injuries case is less than 28 days from the statute, it is now at a very high risk of being statute-barred, even despite an application being filed with PIAB in time. Even if a case is within six months of the expiry of the statute, the changes create a significant risk of it becoming statute-barred.
The amendment to section11 of the act, which lists the updated requirements of a valid application, causes grave concerns regarding access to justice. It significantly raises the bar for making a valid application to PIAB for personal-injury compensation compared with other litigation claims made in the ordinary courts system.
Some changes are reasonable, others seem uncontroversial – even unnecessary (unless you are a respondent insurer and need to run checks on the claimant or send a private investigator PIAB Act and PIAB rules after the claimant). Some are changed drastically from 4 downright oppressive.
The three main changes are:
1) An application will have to be signed by the claimant, even if the claimant is represented. It will have to be either a ‘wet’ signature or a digital one.
2) The application will require more detailed descriptions in relation to when, where, and how the accident or incident causing the injury occurred.
3) The application to PIAB will have to be accompanied by a medical report.
An example of one unnecessary change is the requirement that an application includes details
of how and where the accident or incident occurred. While the ‘where’ is not controversial, the ‘how’ is puzzling – PIAB does not deal with liability, so one must question the necessity of seeking those details.
To date, PIAB has accepted generic descriptions, such as “suffered injury in the course of a road-traffic collision”. Why PIAB needs such detailed information is mysterious – unless the information being sought is not for PIAB, but for the respondent. If so, why is there still a need for a detailed letter of claim under section 8 of the Civil Liability and Courts Act 2004 to be sent “before the expiration of one month from the date of the cause of action, or as soon as practicable thereafter”?
Some changes seem regressive – such as the requirement for a claimant’s digital or scanned ‘wet’ signature. The PIAB Solicitor’s Portal and online form will change to accommodate this. At the time of writing, these will be unavailable from 8pm on 31 August 2023 until 11am on 4 September 2023 due to essential maintenance on these sites arising from the commencement of section 3 of the Personal Injuries Resolution Board Act 2022 on 4 September 2023. It seems that the profession is going to be surprised with the new ‘Form A’ and will have to learn, on the fly, how to deal with it.
‘All information’ requirement
It is going to be an absolute requirement that all the information required in section 11 is provided. However minor the requirements under section 11 are, PIAB is given power to review the application and deem it incomplete. The ‘section 50 letter’ is no longer automatic, as it has been since the introduction of the PIAB portal. This, as some of you may remember, was the main ‘selling point’ of the portal.
While careful instruction- taking can deal with most items in the amended section 11, the medical report is beyond the control of a solicitor and the claimant alike. Medical professionals nearly never provide a medical report by return, and it takes some weeks or months to be received. This is not a criticism – it is a fact.
If the case were close to the expiration of the statute, PIAB would issue section 50 and ask for the medical report to be provided later. Not anymore!
- After sending an application, PIAB will review it as quickly as possible, with a target time of three working days. This is only a ‘target time’ – not a statutory time limit. If PIAB takes five or seven days to review the application, no provisions seem to be made for that delay.
- Following the review, if PIAB deems that the application is complete under the amended section 11, the application will be confirmed as complete for the purpose of section 50, with the effective ‘section 50 date’ being the date the complete application was received. No issues here.
- If, following review, any information is deemed missing for the purposes of section 11, PIAB will give 28 days to supply the missing information and, if not provided, PIAB will close the file. That includes, for example, missing medical reports.
- Once the missing information is provided to PIAB and the application is deemed complete and valid, the effective section 50 date will be the date when the last piece of missing information is provided to PIAB. Please note: it is not the date of making the application.
Statute of Limitations
Given PIAB’s discretion to assess the completeness of the application, the above changes put at risk all cases with looming Statute of Limitations dates. Effectively, if a case is less than 28 days from the statute, it is now at a very high risk of being statute-barred at PIAB’s discretion.
Even if the case is more than one month from the expiry of the statute, and a medical report is not to hand, the case is now high risk. One will not be able to hold a doctor liable in the case of a delay, save in extraordinary circumstances.
The changes create a whole new category of ‘high-risk cases’ with statute dates expiring in less than six months (or however long it may take to procure a medical report) from the date of a first consultation.
One of the possibilities for practitioners in such a case is to seek the protection of the High Court and challenge the constitutionality of this provision, which appears to limit access to justice for personal-injury claimants. If the ease of filing a summons or civil bill is the threshold, the new PIAB rules are a significant, and seemingly discretionary, stumbling block for personal-injury claimants – yet another one.
Time is being shaved from both sides for the claimant – first, the statute was shortened from six down to two years, then section 8 of the Civil Liability and Courts Act 2004 was introduced, demanding that a letter of claim be sent within two months (shortened now to one month) ‘or else’. Now, the last months of the statute are a minefield of liability.
One cannot help but wonder in whose interest these changes are being made, because it is certainly not in claimants’ interests.