FAILURE TO COMPLY WITH PROTOCOL LEADS TO COSTS OF A MEDICAL REPORT NOT BEING RECOVERED

I was informed recently that permission to appeal was refused in the case of Greyson -v- Fuller.   I am grateful to Simon Fisher from DWF for sending me a copy of the decision in Glendining -v- McCarthy,* where DDJ Causton considered the issue of whether the costs of a medical report should be recovered when a claimant had failed to obtain a GP report in accordance with the protocol.  It was held that a failure to comply with the protocol meant that the costs of a psychological report could not be recovered.

“It is a serious breach to bypass or ignore the protocol and just obtain additional reports and not get your first report.”

THE CASE

The judge was hearing an assessment of costs in a personal injury road traffic case.  The action had settled by way of Part 36 offer.  Proceedings had been issued in relation to costs alone.

THE ISSUE IN RELATION TO MEDICAL REPORTS

The claimant had obtained a report from an orthopaedic surgeon and a psychologist.  However he did not first obtain a fixed costs report from a GP.  The main issue related to the costs of the medical reports.

WAS THIS A SOFT TISSUE INJURY

The judge held that this was a soft issue injury and a GP report should have been obtained.  The fact that the solicitor may not have known it was a soft tissue injury was not the test.

6. It is contended here that the solicitor would not necessarily have known that this was a
soft tissue injury when the orthopaedic expert was instructed, but that is not really the test. I
have to look at whether it was a soft tissue injury and also whether the psychological
symptoms were secondary in significance and minor to the physical injuries.

7. In this case the orthopaedic report does refer to the neck pain, neck stiffness and then
there is the right forearm and left elbow pain and it is that left elbow pain which is
controversial because it was longer lived with about six months was the prognosis period for
that. In relation to that, the orthopaedic surgeon says that the aetiology of this condition is
degenerative in nature even to a tendinopathy. It was asymptomatic prior to the date of the
accident.

8. In my judgment, therefore, the orthopaedic surgeon there is saying that this is a soft
tissue injury affecting the tendons. It refers to tennis elbow and I have been taken to the NHS
Patient information leaflet about golfer’s elbow. I think it was unclear which side of the
elbow was affecting the claimant, but, in any event, golfer’s elbow is to do with the tendons
and not being able to withstand the forces everyday life puts upon it and that is on the inside
of the elbow but to me that is a soft tissue injury.

WAS A PSYCHOLOGICAL REPORT NECESSARY?

The judge doubted whether a psychological report was necessary.  The issue of travel anxiety could easily have been dealt with in a GP report.

9. The orthopaedic expert then says that: “He has lost confidence driving, but comment
upon this lies without his field of expertise and should an opinion wish to be sought, I suggest
he is seen by a clinical psychologist”. That is not a straightforward referral to a psychologist.
He is just saying there that it is outside his field of expertise and should it be wished to obtain
an opinion, he suggests a clinical psychologist. A GP expert might have just considered this to be travel anxiety.

THE CLAIMANT’S BREACH OF THE PROTOCOL

13. Therefore, the claimant has failed to comply with the pre-action protocol by obtaining
the first report which is mandatory under para.7.8(a). So the claimant has failed to comply
with the protocol by disclosing the first report and has simply gone ahead and disregarded the
protocol and obtained an orthopaedic and psychologist report.

14. Therefore, I must now hear submissions as to why that was justified because following
the case of Greyson the reports can be admitted but the claimant has not sought relief from
sanction and the case of Greyson made clear that sanction may be in costs.

DISCUSSION OF THE CASE OF GREYSON -v- FULLER

15. I have had a chance to consider the case further over the lunch break. I have already
decided previously that the claimant was in breach of the protocol because this was a soft
tissue injury claim. Under para.7.8(a) the first report has to be a fixed costs medical report
from an accredited medical expert selected for the claim via Medco Portal. A further medical
report, whether from the first expert or from an expert in another discipline, may be justified
where it is recommended in the first expert’s report and that report has first been disclosed to
the defendant. That is to give the defendant an opportunity to object. The idea is to try to
keep costs down.
16. So it has been established in the case of Greyson v. Fuller that reports that are not
disclosed in accordance with the protocol can be admitted as evidence so the court has a
discretion. If they are not admitted as evidence, then obviously no costs can be recovered for
them. If they are admitted as evidence, then costs can be in theory recovered.
17. In the case of Greyson v. Fuller, it was established that it really goes to the issue of
costs which is the sanction. So even if they are admitted as evidence, the costs may not be
recoverable and, as Mrs Justice Foster said:
“The sanction of failing to recover costs is written through
every part of the scheme as a default sanction for compliance
failures.”
She also says:
“The overall structure of the protocol is, as both parties
acknowledge and submit, to provide a disciplined and selfcontained process that achieves its aims of the speedy and
proportionate resolution of lower value claims by imposing preeminently a financial discipline.”
Transcribed from the official recording by eScribers 5
She says:
“That is clear from the general words at para.16 of the PDPACP
and clear in the particular area of medical evidence under
disbursement provisions. Central to the system is the fact that
the default position is that restricted costs are payable. Any
report obtained that is not the initial report will not be paid for
unless it is ‘justified’, in other words, cogent reasons are given
and accepted for its necessity in the process.”
She goes on to say at para.39:
“Where materials are not ‘justified’ – necessary for the claim –
then the recovery of costs incurred in obtaining them in the
usual way under the Protocol is in my judgment at risk.
Otherwise, the claimant is entitled as a matter of course to costs
as per the incorporated provisions.”
She continues further to say that the important features of the Protocol include the emphasis
on proportion and cost effectiveness and streamlining the process.
18. It is true to say that the defendant did not respond to the stage 2 pack, but in my
judgment that was not a valid pack anyway because it did not include the first report in
accordance with the protocol.

WOULD THE REPORTS HAVE BEEN ADMITTED?

19. So in terms of looking at whether these reports would have been admitted and whether
they are recoverable, I need to consider whether they were necessary to claim; whether they
were needed; whether they were “justified”. I would consider that it is for the claimant, the
receiving party, to persuade me that the orthopaedic and indeed the psychologist report –
which is the main issue in contention – was needed, justifiable and was necessary.
20. I cannot say what a GP would have done in terms of referrals, but this does seem to me
to be what has been described by counsel as a bread and butter case which was a soft tissue
injury with a large part of travel anxiety. But it was not a diagnosed condition, so that would
have been an aggravating feature.
21. I do see a lot of GP reports that deal with travel anxiety and it is not necessary to obtain
a psychologist report. It is normally within the remit of the GP to be able to see travel
anxiety, to recognise it and to say that that is travel anxiety without it being referred to a
psychologist. In this particular case, first, it was not a bony injury; it was a soft tissue injury;
but, second, the orthopaedic expert, as I said earlier, it is not clear from his report but he
definitely recommends a psychologist. He just says it is outside his expertise and if they
wish to take further advice then go to a psychologist. It does not follow that a GP would
have said that – we are one stage further in the process of the orthopaedic expert – so I do not
accept that the GP would have recommended a psychological report.
22. Then when I turn to the psychological report, it does not seem to me that it is necessary
for the determination of the claim. Although it might have been mentioned in counsel’s
advice that has been disclosed, that is not unexpected given it was a report that was disclosed
in the case. That does not mean it was necessary to obtain it. A GP report referring to travel
anxiety would have sufficed. The actual report itself is very short. I recited it earlier in my
earlier judgment on the point about soft tissue injuries. It contains details about the travel
anxiety which I have seen in very similar terms in a GP report and it is quite short. Page 2,
the later symptoms, is very much similar to what one would see in a GP report but may be
slightly expanded and obviously it does not find any psychological injury or any diagnosis of
a psychological injury in accordance with DSM-5 as defined there. It is almost, as Mr Smith
said, not really worth the paper it is written on. It does not really add anything, so I do not
find that it is justifiable or necessary for the claim.
23. In terms of the actual breach of the protocol, I am asked to have regard to the Denton
test and relief from sanctions. Although I am not strictly clear as to whether or not it applies
to the self-contained code of the protocol, but assuming that it does then there has been no
real reason given by the claimant for why this breach occurred and no first report was
obtained or disclosed and why they went straight to the orthopaedic expert and then the
psychologist. There is no statement from anybody to justify it.
24. I have heard submissions, obviously, on the point and it is said that effectively the
solicitor was not medically qualified and unable to determine whether or not it was a bony or
soft tissue injury. But I do not consider that to be a good reason for not following the
protocol. It would be for the GP for the first report to look at that issue and decide whether
or not further referral was necessary.
25. It is a serious breach to bypass or ignore the protocol and just obtain additional reports
and not get your first report. As I say, there is no good reason for it. The court has to
emphasise the importance of complying with the protocol and in the interests of the
overriding objective saving costs which the protocol is designed to do.
26. In terms of prejudice, the defendant has been prejudiced by not being able to challenge
the instruction of the two experts.
27. Therefore, I find that, although these reports might have been admissible (although in
fact they were not justified so maybe they would not have been), it cannot be justified at this
stage in terms of recovery of the costs where there has been a breach of the protocol like this.
Therefore, I have to disallow the cost of the psychologist report.

* A copy of the case is available here. Glendining v McCarthy – Wigan CC – Judgments for approval – 20220505 V Final (1)