The InterResolve Scheme Standard Terms
Preliminary
1. Operation of the InterResolve Scheme1.1 The InterResolve Scheme is intended to provide significant benefits to all participants, including claimants, solicitors who represent them and liability insurers/self-insureds
1.2 The InterResolve Scheme applies to all types of personal injury claims, regardless of value, and is designed to resolve those which can be settled early and cost-effectively without civil action or pre-action proceedings on terms acceptable to all and to reduce issues and unnecessary costs in more complex cases proceeding beyond the InterResolve Scheme
1.3 These are the standard terms that apply to any Claim running under the InterResolve Scheme. Any variations for particular Users and/or types of Claim will be set out in a separate agreement signed by InterResolve and any User with whom such terms have been agreed
1.4 Where any User appoints an agent to assist it in administering claims, the User will procure that its agent will be abide by all of the obligations of the User under these Terms
2. InterResolve’s Role
2.1 InterResolve’s role shall include:
2.1.1 bringing together and obtaining early involvement of all parties necessary to deal with the Claim including, where necessary, seeking the agreement of non-participating parties to use the InterResolve Scheme for the Claim
2.1.2 providing the use of the InterResolve Process and the InterResolve Platform throughout the InterResolve Scheme
2.1.3 the delivery and operation of administrative and other services to the Claim
2.1.4 arranging IMAs where required and discussing and facilitating rehabilitation
2.1.5 arranging medical and other expert’s reports where required
2.1.6 arranging ILOs and independent legal representation where required
2.1.7 confidential communication, facilitation and settlement negotiations as a neutral mediator throughout
2.1.8 advising on suitable ADR options
2.1.9 providing such ADR options as the parties might agree and/or arranging appropriate external ADR input where appropriate and agreed
3. Introduction of Claims
3.1 A Claim can come into the InterResolve Scheme in any of the following ways:
3.1.1 a Claimant asks InterResolve to deal with a Claim or a Solicitor introduces a Claim before the Respondent or Insurer is notified (‘New Claim’)
3.1.2 an Insurer introduces an unrepresented Claim notified to it outside of the InterResolve Scheme after making a decision on liability (‘Liability Decision Claim’)
3.1.3 either an Insurer or a Solicitor introduces for Telephone Mediation an existing Claim that has proceeded outside of the InterResolve Scheme (‘Legacy Claim’)
3.2 Reference to ‘a Claim’ will relate to all 3 modes of introduction unless these Terms expressly provide otherwise
4. The InterResolve Process and the InterResolve Platform
4.1 Each Claim will follow the InterResolve Process operating on the InterResolve Platform as appropriate to its mode of introduction
4.2 InterResolve will provide each User with appropriate training and User Guides. Each User will procure that all individuals running Claims on its behalf under the InterResolve Scheme are familiar with the relevant User Guides and are aware of and are instructed to take all reasonable efforts to meet the SLAs relevant to that User
Operational
5. New Claims – Early Notification5.1 The Solicitor will provide details of the Insurer wherever possible upon introducing a New Claim
5.2 In all cases where the identity of the Insurer is not known at the time a New Claim is introduced, InterResolve will make immediate enquiry to ascertain the identity of the relevant Insurer
5.3 As soon as InterResolve is aware of the identity of the Insurer, InterResolve will notify the Insurer of the Claim. Notification shall be via the InterResolve Platform where the Insurer is a User.
5.4 Where appropriate, that notification shall be treated as a s2.6 Notice under the PAP and shall have the effect of freezing any further steps under the PAP while the Claim remains within the InterResolve Scheme
6. Commencement
6.1 In all New Claims where the Insurer is already a User, a Claim will commence upon receipt by the Insurer of notification of the Claim
6.2 For all New Claims other than as provided for under 6.1, that Claim will commence under the InterResolve Scheme upon the date when the Insurer agrees to use the InterResolve Scheme
6.3 A Liability Decision Claim will commence under the InterResolve Scheme upon the date it is notified to InterResolve by the Insurer
6.4 A Legacy Claim introduced by either an Insurer or a Solicitor will commence under the InterResolve Scheme once the Solicitor or Insurer on the other side has agreed to use the InterResolve Scheme for that Claim. Users may give such agreement automatically to use the InterResolve Scheme for all Legacy Claims that are introduced into the InterResolve Scheme where they are on the other side, either generally or in respect of Claims introduced by particular Insurers or Solicitors
7. Early Care and Rehabilitation
7.1 Insurers and Solicitors agree to cooperate in considering the opportunity and benefits of appropriate early rehabilitation being provided to Claimants
7.2 Where the Insurer has agreed to the InterResolve Scheme menu option of an IMA:
7.2.1 the Insurer shall specify, in making its decision to include the IMA menu option, whether the IMA process shall commence before or after the Insurer has made its liability decision
7.2.2 an IMA will be a medical-evidenced based independent and objective assessment of a Claimant’s rehabilitation needs
7.2.3 in respect of any course of treatment recommended by an IMA and subject to the consent of the Claimant, the Insurer:
7.2.3.1 will (or will permit InterResolve to) arrange and will pay for that treatment to be undertaken by an appropriate service provider or other medical provider acceptable to the Claimant
7.2.3.2 where an IMA is obtained by an Insurer before a liability decision, the use of the IMA process will be without prejudice to their subsequent decision on liability. If liability is subsequently denied for reasons other than fraud, the Insurer will not be liable to fund any further treatment, but will indemnify the Claimant for the cost of the treatment up to that point
7.3 Any IMA or alternative assessment of a Claimant’s needs, any subsequent provision of rehabilitation or care and the case management of the Claimant’s needs shall be undertaken in accordance with the current BICMA Code of Best Practice on Rehabilitation
7.4 No IMA or similar report shall be treated as evidence in any claim which does not settle within the InterResolve Scheme unless otherwise agreed by the parties
7.5 In all cases, the Solicitor will advise the Claimant to co-operate with the Insurer in these arrangements, including in relation to any treatment or service recommended by the IMA or alternative assessment of the Claimant’s needs, other than where contrary advice has been received from the Claimant’s own GP or consultant
7.6 The Insurer will pay the Claimant’s reasonable expenses incurred in attending any assessment and treatment
7.7 In RTA claims:
7.7.1 the Insurer may offer to the Claimant the use of a suitable insured hire/courtesy vehicle at the expense of the Insurer
7.7.2 a Solicitor will only refer the Claimant to a credit repair/hire arrangement in cases where the Insurer has failed to meet the Claimant’s reasonable needs under paragraph 7.7.1
8. Liability Decision
8.1 Following notification to it of an New Claim, the Insurer will confirm whether or not there is an issue as to liability as soon as possible, but in any event within 60 days in non-RTA cases and 15 days in RTA cases from time starting to run in accordance with paragraphs 6.1 or 6.2 above
8.2 The Insurer shall take all reasonable efforts to respond within these time limits. If, despite having done so, it is unable to reach a decision within the required time, it may prior to the expiry of the above time limits request an appropriate extension of time stating its reasons for such an extension. Any first request for an extension of time shall be agreed where the extension sought and the stated reasons are reasonable in the circumstances. In the event that agreement cannot be reached or if the Insurer seeks a second or subsequent extension of time, the matter will be referred to a Resolver before any attempt is made to proceed with the Claim outside of the InterResolve Scheme
8.3 Paragraph 3.9 of the PAP (with the substitution of the s2.6 Notice for the letter of claim) shall apply to any admissions made within the InterResolve Scheme
9. Unrepresented Claimants
9.1 All unrepresented Claimants shall be offered access to independent legal advice and/or representation under the InterResolve Scheme
9.2 Where a New Claim or Liability Decision Claim involves:
9.2.1 an unrepresented Claimant,
9.2.2 liability having been accepted in full by the Insurer, and
9.2.3 an injury where the Claimant has recovered to the point where a stable prognosis can be obtained within 3 months of the Claim having commenced under the InterResolve Scheme,
the Claimant shall be offered legal advice by means of an ILO in accordance with the ILO Process
9.3 In all circumstances other than as set out in paragraph 9.2 above, the Claimant shall be offered full legal representation at the appropriate time
9.4 Any legal advice or legal representation of Claimants under the InterResolve Scheme shall be provided by Solicitors who are independent of the Insurer
9.5 Where a Claimant remains unrepresented, the references in these Terms to ‘Solicitor’ shall, where the context allows, instead refer to the Claimant
10. Liability Issues
10.1 All New Claims or Liability Decision Claims where the Insurer has indicated that there is an issue on liability which it wishes to resolve under the InterResolve Scheme and all Legacy Claims shall proceed to Telephone Mediation or other agreed ADR under the InterResolve Scheme
10.2 The Telephone Mediation shall seek to resolve the liability issues and may also extend to any other aspects of the Claim, including quantum and settlement of the Claim. Where the liability issue is solely concerned with contributory negligence, it will usually be appropriate to deal with both liability and quantum at the same time
10.3 A Telephone Mediation commenced at this stage may be adjourned and any resumption will be treated as part of the same mediation session. If a Telephone Mediation deals solely with the liability issue and the parties subsequently require a further mediation for the purposes of settlement, that shall be treated as a separate Telephone Mediation for the purposes of the InterResolve Scheme
10.4 The Telephone Mediation process and discussions shall be confidential and without prejudice to either side’s rights but any agreement reached shall be confirmed in writing and shall be binding on the parties
11. Medical Evidence
11.1 Where the Claimant has retained a Solicitor, it shall be the Solicitor’s responsibility to monitor the medical condition of the Claimant and advise InterResolve when the Claimant has arrived at the point of stable prognosis to enable appropriate interim or final medical evidence to be obtained for the purposes of seeking a settlement of the Claim
11.2 Where an IMA or external assessment has been obtained, the appropriate medical evidence in any Claim where recovery is or is likely to be straightforward shall normally be in the form of a medical sign-off obtained from an independent GP after the completion of any appropriate treatment, unless it has previously been agreed between the Solicitor and the Insurer that an alternative form of medical report from an Approved MRO will be obtained for all Claims in which they are both involved
11.3 In all other cases InterResolve will procure via the Approved MRO a medical report normally from an independent GP. In more complex Claims, or where otherwise appropriate, the Solicitor can agree with the Insurer that a Consultant of a particular specialism is a more appropriate starting point for medical evidence and can ask InterResolve to instruct the Approved MRO to provide a medical report from such appropriate Consultant or specialist
11.4 Either the Solicitor or the Insurer may require the medical records to be made available to the medical expert at the expense of the Insurer
11.5 Any medical report obtained:
11.5.1 will be paid for by the Insurer on the MRO Agreement or other pre-agreed costs scale
11.5.2 will be disclosed initially to the Solicitor and Claimant only and, following authority from the Claimant, to the Insurer
12. Special damages – information and reports
12.1 The respective areas of responsibility in relation to claims for special damages are as follows:
12.1.1 The Claimant shall be responsible for supplying all supporting information and evidence
12.1.2 InterResolve and the Solicitor will agree which of them will be responsible for collating any relevant documents and evidence and procuring any appropriate specialist reports
12.1.3 The Solicitor shall be responsible for advising the Claimant as to the various heads that can be claimed and on the value of any claims
12.2 If the Claimant seeks to claim a sum in excess of £100 for loss of earnings (employed or self-employed) and either:
12.2.1 an ILO is to be obtained, or
12.2.2 the Insurer agrees otherwise that one can be obtained, and
12.2.3 in each case the period of loss claimed is no more than 3 months
InterResolve will obtain a Loss of Earnings Report
12.3 A Loss of Earnings Report will be:
12.3.1 paid for by the Insurer and
12.3.2 disclosed initially to the Solicitor and Claimant only and, following authority from the Claimant, to the Insurer
13. Settlement phase
13.1 The settlement phase can be initiated by either the Solicitor or the Insurer making an offer
13.2 Once the settlement phase has been initiated, any of InterResolve, the Solicitor or the Insurer can at any time initiate a Telephone Mediation. A Telephone Mediation will take place in every case where an offer has been rejected without a counter-offer being made or where a Claim is not settled upon a second counter-offer having been made
13.3 The Telephone Mediation process and discussions shall be confidential and without prejudice to either side’s rights but any settlement reached shall be confirmed in writing and shall be binding on the parties
13.4 Any agreed compensation and/or Solicitor’s costs will be paid by the Insurer within 10 days of a settlement being agreed
14. ADR options
14.1 Where Telephone Mediation does not achieve the settlement of any issue or the Claim, all parties will then consider with InterResolve all other available ADR options to endeavour to achieve settlement or to agree a framework for further steps to be taken under the PAP and/or CPR. These can include:
14.1.1 Face to face mediation
14.1.2 Evaluations and findings (binding/non-binding)
14.1.3 Adjudications or arbitrations
14.2 Nothing in these Terms affects the right of a Claimant to make an offer under Part 36.10 of the CPR at any time while within the InterResolve Scheme
15. Opt-out
15.1 Failing settlement within the InterResolve Scheme and any ADR options that the parties may agree to follow:
15.1.1 the Claim may then be taken outside the InterResolve Scheme and dealt with under the CPR
15.1.2 in such circumstances, a proper letter of claim for the purpose of the PAP will be deemed to have been sent
15.1.3 subject always to paragraph 18, to the exclusion of offers and disclosures made solely for mediation purposes and to the provisions of paragraphs 7.3 and 7.4 above, all evidence obtained and formally disclosed under the InterResolve Scheme will be admissible in any proceedings to minimise any remaining pre-action steps and/or costs
Funding and Costs
16. Funding16.1 This section 16 applies to all New Claims and Liability Decision Claims where a Claimant receives full legal representation from a Solicitor
16.2 Where the Claimant has the benefit of a pre-existing legal expenses policy which can be utilised by the Solicitor, whether as panel solicitor or otherwise:
16.2.1 the funding arrangements set out in the rest of this section will not be applicable, and
16.2.2 the Solicitor will be entitled to the costs provided by the InterResolve Scheme irrespective of the terms of the existing legal expenses policy
16.3 In all other cases, that is where the Claimant has no pre-existing legal expenses insurance or has a legal expenses insurance policy which requires the Claimant to use a legal representative other than the Solicitor:
16.3.1 the Claimant will not take out any ATE insurance whilst the Claim remains within the InterResolve Scheme (unless doing so is a condition of the acquisition by the Solicitor of the right to represent the Claimant and the Insurer has agreed to accept any such Claims into the InterResolve Scheme)
16.3.2 the Insurer waives any right to seek to recover from the Claimant or the Solicitor any costs for work undertaken by the Insurer whilst the Claim remains within the InterResolve Scheme to which they might otherwise be entitled under any subsequent costs order
16.3.3 as a result of the benefits that flow from the collaborative contractual arrangements provided by the InterResolve Scheme:
16.3.3.1 the Insurer waives any argument concerning the application of the indemnity principle
16.3.3.2 for cases which are taken out of the InterResolve Scheme for whatever reason, the Insurer waives any right to argue that:
16.3.3.2.1 the Claimant has acted unreasonably in failing to utilise any pre-existing legal expenses insurance which would require the Claimant to use a solicitor other than the Solicitor, or
16.3.3.2.2 the premium of any subsequent ATE insurance obtained by the Claimant is unreasonable by virtue of the fact solely that the premium may be higher than it would have been had the policy been taken out at an earlier stage and/or would not have been required if the Claimant had appointed the panel solicitor of the legal expense insurer
17. Costs and Fees
17.1 Solicitors’ Costs
17.1.1 Subject to paragraphs 17.1.2 and 17.1.4 below, if a New or Liability Decision Claim is settled within the InterResolve Scheme and the Claimant has received legal advice or representation, the Insurer will pay the agreed Solicitor Scheme Costs
17.1.2 Where the parties agree at the outset that the claim involves serious or catastrophic injuries, the parties may adopt the benefits of the InterResolve Scheme but disapply the Solicitor Scheme Costs so long as they have agreed at the outset in writing an alternative arrangement for assessing inter-party costs
17.1.3 In relation to any Liability Decision Claim or Legacy Claim, if the Solicitor has entered into a CFA backed by ATE insurance prior to the Claim coming into the InterResolve Scheme, the Solicitor must advise the Insurer of the amount of the premium agreed for the ATE insurance at the time it seeks to introduce the Claim and the Insurer will refund that premium if the Claim is accepted into the InterResolve Scheme and is subsequently successful
17.2 InterResolve’s fees
17.2.1 Save for the costs of any disbursements that the Insurer has agreed to cover (including any expert’s reports) or agreed otherwise, the Insurer and the Claimant shall be liable in equal proportions for any fees charged by InterResolve at the scales agreed with them from time to time
17.2.2 Subject only to the Insurer accepting coverage of the Claim, the Insurer agrees to indemnify the Claimant for the Claimant’s share of InterResolve’s fees
General
18. Confidentiality and protection of the parties18.1 All information and/or documentation disclosed or given to InterResolve by any party which is either implicitly confidential or is expressly stated to be confidential to that party, and which is not otherwise publicly available or contractually disclosable between the parties, shall remain confidential and will not be disclosed by InterResolve to any other party without the specific authority of the disclosing party
18.2 While all discussions with InterResolve shall be without prejudice to the parties’ rights to pursue or continue proceedings, the parties agree to withhold any formal action while a Claim remains within the InterResolve Scheme
18.3 It is acknowledged by the parties that the role of InterResolve is to facilitate negotiations as a mediator and InterResolve will not seek to or give the parties any advice of a professional, technical or other nature
18.4 Neither InterResolve, a Resolver or any officer, employee or agent of InterResolve shall be liable to any party for any act or omission in connection with the InterResolve Scheme save in respect of the consequences of any conscious and deliberate wrongdoing by them
18.5 The parties agree that they shall not have access at any time to InterResolve’s notes and that neither InterResolve nor any representative of InterResolve will be called by any of them as a witness (other than as an agreed joint witness) in any proceedings in relation to the issues between them, any discussions or negotiations in relation to any Claim. Unless otherwise agreed in writing between the parties, any opinions expressed by any representative of InterResolve will be inadmissible as evidence in any proceedings between the parties
19. Conduct and Liaison
19.1 All those members of staff of Users who handle Claims shall be notified of the terms of the InterResolve Scheme. Users shall each be responsible respectively for ensuring that each of their employees, agents or contractors using the InterResolve Platform on their behalf or request are made aware of and comply with the log on and security procedures issued by InterResolve from time to time
19.2 All Users will nominate a Liaison Officer who will be the main point of contact for that participant for all matters relating to the InterResolve Scheme, other than the day to day conduct of Claims. All Users will advise their staff and InterResolve of the nominated Liaison Officer and their role. Any agreed changes to the InterResolve Scheme must be communicated to all relevant staff within 10 days of the Liaison Officer being notified of the change
19.3 Following any serious or persistent breach of these Terms or the spirit of the InterResolve Scheme, InterResolve shall have the power to require assurances from any User as to its future conduct in running Claims under the InterResolve Scheme, amend the terms on which any User may be involved in the InterResolve Scheme or exclude any User from any future involvement in the InterResolve Scheme
19.4 InterResolve’s published Complaints Procedure will apply to any complaints by any User about the InterResolve Scheme
20. Miscellaneous
20.1 The calculation of all time periods shall be considered in working days and the date of receipt (including e-mail and other electronic communication) will be assumed to be one working day after the date of dispatch, save for post (always to be sent 1st class) or DX, which shall be deemed to be two
20.2 The parties may at any time agree, either directly or with the assistance of InterResolve, to vary any of the time limits provided by these Terms where this is likely to assist the prospects of settlement or further the purposes of the InterResolve Scheme
20.3 These Terms are governed and will be construed in accordance with English Law under the exclusive jurisdiction of the English Courts
20.4 In the event of any disagreement between the parties in relation to these Terms or any steps taken or to be taken under them by InterResolve, a Solicitor, an Insurer or Respondent, such disagreement shall be referred to mediation in the first instance and to a mediator to be agreed between the parties
21. Definitions
ADR – Alternative Dispute Resolution, including mediation, neutral evaluation and neutral determination/adjudication
Approved MRO – the medical reporting organisation agreed between the Solicitor and Insurer providing medical reports for the Claimant in accordance with the terms of the InterResolve Scheme
ATE – After the Event
BICMA – the Bodily Injury Claims Management Association
CFA – Conditional Fee Agreement
Claim – claim for damages in respect of personal injury and any consequential loss and expense
Claimant – the person bringing a Claim
Days – working days
ILO – an independent legal opinion obtained on the value of a Claim provided by a LawAlliance panel Solicitor to a Claimant who does not require full legal representation
ILO Process – the process for obtaining ILOs, set out in Schedule 1 to these Terms
IMA - Initial Medical Assessment carried out by an approved medically trained assessor to provide an evidence based assessment of the Claimant’s rehabilitation needs
Insurer – refers to any party or parties who have agreed to indemnify the Respondent in respect of its liability to pay any valid Claim brought by a Claimant. Where a Respondent self-insures, references to Insurer shall be read accordingly
InterResolve – includes InterResolve Holdings Limited and all its subsidiary companies
InterResolve Platform – InterResolve’s online platform for delivering the InterResolve Scheme
InterResolve Process – the processes and procedures which form the InterResolve Scheme
LawAlliance – the panel of Solicitors independent of Insurers who have agreed to provide legal services to Claimants under the InterResolve Scheme
Loss of Earnings Report – a calculation of a Claimant’s loss of earnings obtained from independent accountants under arrangements made by InterResolve for the purposes of the InterResolve Scheme
MRO Agreement – the Medical Reporting Organisation Agreement dated 10 May 2007 or any amendment thereto or replacement thereof
PAP – CPR Personal Injury Pre-Action Protocol
Resolver – an InterResolve mediator
Respondent – the party legally liable to pay any valid Claim brought by a Claimant
s2.6 Notice – the early electronic notice providing basic details of the Claim in accordance with s2.6 of the PAP, as referred to in paragraph 5.3
SLA – Service Level Agreement
Solicitor Scheme Costs – the pre-agreed scales of costs appropriate to any Claim payable by the Insurer to the Solicitor upon settlement within the InterResolve Scheme agreed between individual Insurers and InterResolve in force at the time the Claim is first notified to InterResolve
Solicitor – a solicitor or other equivalent legal advisor representing a Claimant
Telephone Mediation – a mediation of up to one hour’s cumulative duration conducted by a Resolver via telephone under the terms of InterResolve’s standard mediation agreement
User – a Solicitor or Insurer participating in the InterResolve Scheme
User Guides – the information issued to Users by InterResolve providing details of the InterResolve Process and how to use the InterResolve Platform
Schedule 1 - ILO Process
InterResolve will source ILOs via the arrangements it has with LawAlliance, so that Solicitors can have the benefit of the waiver granted by the Law Society on 22 December 2006, using the following process.
1. InterResolve will send to the appointed Solicitor a request for an ILO to via the InterResolve Platform and at the same time will also provide:
• a schedule of background information about the incident and the Claimant and any appropriate medical information and reports and, where any out-of-pocket expenses are to be claimed, an appropriate calculation and supporting details
• a written authority from the Claimant for the Solicitor providing the ILO to correspond with him/her c/o InterResolve
• the name, address and reference of the Insurer for the bill to be issued by the Solicitor
2. The Solicitor will complete and return the ILO on the InterResolve Platform within the agreed SLAs
3. InterResolve will not pass on any ILO to an Insurer, unless the Claimant gives their express consent within a Telephone Mediation
