THE USE OF A SECOND REPORT IN THE LOW VALUE ROAD TRAFFIC PROTOCOL: FAILURE TO DISCLOSE FIRST REPORT TO THE DEFENDANT DID NOT LEAD TO MEDICAL EVIDENCE BEING EXCLUDED
I am grateful to barrister Kriti Upadhyay for sending me copies of the judgment of Mrs Justice Foster in Greyson -v- Fuller [2022] EWHC 211 (QB), a copy of which is available here Greyson v Fuller – HC Judgment 3-2-22 (1) , together with the judgment at first instance of HHJ Petts, which is available here Greyson v Fuller – judgment 10th February 2021 (including costs decision). It concerns the construction of the rules relating to the Low Value Personal Injury Protocol, in particular the question of whether a second medical report can be relied on when the first was not disclosed in advance. The rules have been changed recently and this is not an issue that would arise under the revised rules. (There is an interesting footnote to the judgment at first instance …)
THE CASE
The claimant brought an action covered by the Road Traffic Protocol. The stage 2 settlement pack was sent to the defendant on the 13th March 2020. This was the first time that the defendant had seen any of the reports. Offers were made by both parties.
The day before the hearing of the Stage 3 hearing the defendant took the point that the statements had been served together and breached the rules, the reports were therefore not admissible. The Stage 3 hearing was adjourned (with costs against the defendant) and re-listed before the Circuit Judge.
THE RULES
The rules (as they then stood)
(1) it is expected that only one medical report will be required;
(2) a further medical report, whether from the first expert
instructed or from an expert in another discipline, will only be
justified where—
(a) it is recommended in the first expert’s report; and
(b) that report has first been disclosed to the defendant; and
THE CIRCUIT JUDGE’S SUMMARY OF THE ISSUES
HHJ Petts summarised the arguments:-
1. A claimant obtains a medical report under the Pre-Action Protocol for Low Value
Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”) but does not
send it to the defendant through the Portal at that stage. The claimant later obtains
further medical reports from different experts and sends all the medical reports to the
defendant at the same time. Does this mean that the further medical reports are not
“justified” within the meaning of paragraph 7.8B(2) of the RTA Protocol? If so, what
(if any) are the consequences for the claimant of the reports not being “justified”, and
if there are consequences, do they follow automatically or is it a case where the court
must exercise its discretion to impose, or grant relief from, sanctions?
2. These are the issues in this case. In summary, the Defendant argues that the failure to
disclose the first medical report before disclosing the further reports means that the
Claimant is debarred from relying on any reports apart from the first one, while the
Claimant says that, even if there has been a breach, there is no automatic sanction of
inadmissibility and the Claimant ought to be allowed to rely on the further reports at
the Stage 3 hearing.
THE CIRCUIT JUDGE’S FINDINGS ON THE CLAIMANT’S APPLICATION FOR RELIEF
At first instance HHJ Petts held that the failure to comply with the requirement to file medical reports consecutively did represent a breach of the rules. However relief from sanctions was granted to the claimant.
33. The Claimant says that paragraph 16 does not include a sanction of inadmissibility.
There are two problems with this submission. Firstly, as I have already concluded, the
sanction arises under the terms of the RTA Protocol and the Claimant needs to obtain
relief from sanctions. It is not the case that the reports are already properly in
evidence and the Defendant is asking the court to exercise its discretion under the PreAction Practice Direction to impose a sanction and exclude them. Secondly,
paragraph 16 is not a closed list of possible sanctions, as was accepted during the
hearing.
34. When considering an application for relief from the sanction imposed by paragraph
7.8B(2), it is important to bear in mind the aims of the RTA Protocol as set out in
paragraphs 3.1 and 3.2, the main points here being:
i) To ensure that damages to be paid within a reasonable time, and fixed costs to
be paid at each appropriate stage, without the need for proceedings; and
ii) To ensure that the use and cost of medical reports is controlled, and that in
most cases only one medical report is obtained.
35. No application for relief from sanctions has been filed by the Claimant but in the
circumstances in which the point has arisen, against a complicated backdrop of
provisions and authorities, I do not hold that against the Claimant. Both parties have
ventilated the necessary points even if not by reference to the three-stage test, to
which I can now turn.
36. Firstly, was the breach serious or significant? A breach of paragraph 7.8B(2) could be
serious or significant in a particular case. In my view, however, this is not the case
here.
i) I cannot see, on the evidence before me, that there was any actual effect on the
way that the pre-action stage of the litigation was handled by either party.
There is certainly no evidence of any impact put forward by the Defendant.
ii) There was no objection from the Defendant at the time. If the Defendant had
been concerned by the late disclosure of the first report, and the failure to keep
the Defendant informed of the progression of the Claimant’s symptoms and
the need for two further experts, I would have expected a contemporaneous
complaint.
iii) Furthermore, the parties’ respective offers set out in Part A of the Court
Proceedings Pack bear out the Claimant’s submission that the parties were
negotiating based on the full medical picture set out by all three experts. The
figures under discussion for PSLA are far higher than would be expected for a
whiplash injury lasting under six months. That clearly points to the breach
having no impact. There is no evidence from the Defendant of any factors that
would explain offers at such a level apart from the inherent value of the claim.
37. I noted earlier the Defendant’s submission as to the rationale of paragraph 7.8B(2) –
to allow the paying party input into further medical examinations and treatment.
However, in this case, there is no evidence that this is something that the Defendant
wanted to do and would have done but was unable to do so because of the breach. I
Approved Judgment
Greyson v Fuller 10th February 2021
cannot take this point any further in the Defendant’s favour without evidence. Bearing
in mind the passage cited from Cable earlier, it also strikes me as unlikely that the
Defendant would have become involved in this way in a low-value case proceeding
under the RTA Protocol rather than the Personal Injury Pre-Action Protocol.
38. In my view, the Defendant has seized, opportunistically and belatedly, on a previously
unnoticed breach by the Claimant of the RTA Protocol. In reality, the Claimant has
complied in substance with the terms of the RTA Protocol (to adopt the phrase used in
paragraph 13 of the Pre-Action Practice Direction) by disclosing the reports upon
which she seeks to rely sufficiently early in the process for the parties to be able to
negotiate and attempt settlement. Furthermore, the breach has not actually affected
compliance in practice with the aims of the RTA Protocol in paragraphs 3.1 and 3.2:
i) The breach has not led to the need for proceedings to be started unnecessarily
(paragraph 3.1(1)) – proceedings were necessary because the parties could not
agree damages regardless of admissibility issues.
ii) The breach (as opposed to argument about the breach) has had no impact on
the payment of damages within a reasonable time (paragraph 3.1(2)).
iii) Given the failure to recover within the prognosis period of the first report,
further investigations were always going to be needed. This is not a case where
only one medical report should have been obtained (paragraph 3.2(2)), and so
the failure to disclose the first report before obtaining the further reports has
not made any difference overall to how the use and cost of the reports would
have been controlled (paragraph 3.2(1)).
iv) Importantly, it was not suggested that the failure to comply has made any
difference to the likely level of damages compared to a situation in which the
reports were disclosed without breach of paragraph 7.8B(2).
39. Overall, therefore, the lack of any demonstrable effect flowing from the breach leads
me to conclude that the breach was neither serious nor significant.
40. The second stage of Denton is to ask why the default occurred. No explanation is
given in the Claimant’s solicitor’s witness statement, so there is nothing to say
whether it was a deliberate breach or an oversight. The Defendant submits that it must
be assumed that it was deliberate because there was no evidence that the provision
was breached by mistake. I do not consider that is an inference that is justified on the
evidence before me. It is entirely plausible that the Claimant overlooked the
requirement (as the Defendant clearly did until very shortly before the Stage 3
hearing) and I do not see anything sinister in a statement that was not drafted as a
CPR 3.9-related statement not addressing the reason for the breach in circumstances
when the Claimant’s arguments at the time of preparing the witness statement were
aimed in a very different direction.
41. Thirdly, I need to consider all the circumstances of the case so as to deal justly with
the application, giving particular weight to the need for litigation to be conducted
efficiently and at proportionate cost, and to enforce compliance with rules, practice
directions and orders. In my view, the latter provision also includes compliance with
pre-action protocols, and if there was any doubt about this proposition, then paragraph
Approved Judgment
Greyson v Fuller 10th February 2021
59 of Cable makes it clear that the RTA and EL/PL Protocols are expressly
interwoven into the CPR and cannot be divorced from the CPR.
42. In this case, the breach has caused no prejudice to the Defendant. The highest it was
put on the Defendant’s side during the hearing was that it was simply not possible in
the circumstances to say if there had been prejudice to the Defendant and if so, what
that prejudice was. In contrast, if the sanction is allowed to stand, the Claimant will be
deprived of seeking damages based on the full picture presented by all three medical
experts and that would be a clear prejudice to her. It would also be an outcome that
was wholly disproportionate to the severity of the breach.
43. In my view, the court does need to look at all the medical reports in order to
determine the claim properly. Compliance with the RTA Protocol is obviously
important but the breach here is at the lower end of the scale and a key point is that
the breach has not had any impact on the efficient conduct of the claim or the
proportionality of costs.
44. Looking at the matter in the round, this is in my view a clear case for granting the
Claimant relief from sanctions and permitting her to rely upon all the medical reports.
THE JUDGMENT ON APPEAL
The defendant appealed and the claimant counter-appealed. Mrs Justice Foster refused the defendant’s appeal and allowed the claimant’s appeal.
She found that:
- The sanction for simultaneous rather than sequential disclosure of the reports gives rise to the risk of sanction in costs, at the end of the process, not exclusion of the evidence.
- There was no failure to serve the defendant properly under 8BPD 6 by reason of the simultaneous service of reports.
- It was not necessary to invoke 8BPD 7(1)(3) in order to rely on the claimant’s extra reports.
THE NEW RULES
Mrs Justice Foster also pointed out that the rules were amended on 31st May 2021. These do not provide for the first report to be sent in advance and eliminates all the problems in the appeal.
A JUDICIAL FOOTNOTE (AND IT IS ABOUT THIS BLOG)
There is a footnote in the judgment of HHJ Petts which deals with when the defendant became aware of the first instance decision that they were relying on. It shows, perhaps, the importance of subscribing to this blog.