I am grateful to barrister James Miller for sending me a copy of the judgment of HHJ Bird in Lally -v- Butler (27th September 2022). The defendant successfully appealed an order that they were responsible for Part 7 costs rather than the portal. A copy of the judgment is available here. H17YJ113 Lally v Butler Appeal Judgment
THE CASE
This summary was provided by James.
Summary
“His Honour Judge Bird allowed the Defendant’s appeal against a decision to award the Claimant’s costs of pursuing Part 7 proceedings instead of following the procedure set out in the Pre-Action Protocol.
A medical report was served on the Defendant with a request for a stay and interim payment as the Claimant was said to be “uncertain as to whether [she] will reach a recover in line with the prognosis….” Judge Bird determined that the Defendant’s subsequent failure to make an interim payment did not give the Claimant a valid reason to leave the Portal. No right to request an interim payment had arisen under the Protocol as a further medical report was not needed.
His Honour Judge Bird adopted the rationale of Foster J in Greyson v Fuller [2022] EWHC 211 (QB), which he said provided clear authority for the proposition that a Claimant can be said to “need” a subsequent medical report only where that report is “justified”.
Judge Bird determined that the often-cited decision in Luvin v Ageas Insurance Limited (2015) (unreported) had re-written the Protocol so the words “where the claimant needs to obtain a subsequent medical report…” read “where a claimant would like to delay settlement….” The Judge concluded that although purposive construction can sometimes assist in filling in gaps, it should not be used to re-write something akin to a rule.”
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