Factual background and medical evidence issues
The claim arose from an allegation of noise induced hearing loss (NIHL) brought against three defendants, each said to have employed the claimant at different stages of his working life. The claim was of modest financial value, pleaded within the £5,000 damages bracket.
Proceedings were issued with Particulars of Claim supported by what was described as a medical report from a consultant audio‑vestibular physician, Dr. Kaukab Rajput. The report diagnosed NIHL and tinnitus and attributed the claimant’s hearing loss to occupational noise exposure across his employments. However, the report was prepared without any direct contact between the expert and the claimant. There had been no interview, consultation or examination. Instead, the expert relied on a letter of instruction, GP records, employment history information provided by the claimant’s solicitors, and an audiogram carried out by another clinician, unsupervised by the reporting expert.
On its face, the report purported to address condition, causation and prognosis. It went further still, commenting on symptoms such as tinnitus and hyperacusis and recommending hearing aids. Yet fundamental aspects of a medical history were absent. There was no clear account of symptom onset, no discussion of progression, no exploration of alternative causes, and no explanation of how subjective symptoms had been assessed without speaking to the claimant. Although extracts from GP records were reproduced, their relevance to the conclusions reached was unexplained. The report did not identify the source of key factual assumptions, nor did it engage with any range of medical opinion.
The Defendants applied to strike out the claim on the basis that the report did not comply with CPR Part 35 and therefore could not satisfy the mandatory requirement in Practice Direction 16 paragraph 4.3 for a claimant relying on medical evidence in a personal injury claim. All of the Defendants were represented by DWF.
The Claimant argued that there was no absolute prohibition on “desktop” reports and that any deficiencies could be addressed through Part 35 questions or by going to weight rather than admissibility. It was also suggested that striking out a low‑value claim for evidential defects would be disproportionate.
Legal framework and relevant authorities
The application required the court to consider the interaction between CPR Part 35, PD 35 and PD 16. Paragraph 4.3 of PD 16 states that where a claimant relies on medical evidence, a report from a medical practitioner must be attached to or served with the Particulars of Claim. That requirement is not a formality. It assumes that the report served is, in substance, a CPR‑compliant expert report.
Part 35 and its Practice Direction impose well‑established duties on experts: independence from the litigation process, consideration of all material facts (including those adverse to the instructing party’s case), transparency as to sources of information, and, where appropriate, identification of any range of opinion. These principles are not new. They reflect longstanding common law duties, most authoritatively restated by the Supreme Court in Kennedy v Cordia (Services) LLP.
In Kennedy, the Supreme Court emphasised that an expert must explain the factual basis for their opinion, identify information not derived from their own observations, and maintain independence in both form and substance. Importantly for this case, the Court confirmed that independence and compliance with expert duties go to admissibility, not merely weight. An expert report which fails these requirements may properly be excluded altogether.
The Defendants also relied on Dalus v Lear Corporation & Others, a County Court decision addressing NIHL evidence generated without examination or interview. In Dalus, HHJ Gosnell was critical of reports derived from audiometric data alone and rejected attempts to argue that PD 16 did not require a Part 35‑compliant report at the pleading stage. While the sanction in Dalus turned on its own facts, the decision is frequently cited for its clear articulation of what NIHL medical evidence must contain.
Against that background, the court was asked to determine two sequential questions: first, whether the report complied with Part 35; and second, if it did not, whether strike out under CPR 3.4(2)(c) was an appropriate and proportionate response.
The outcome
The court concluded that the report was not CPR‑compliant. Although described as a medical report, it lacked features fundamental to expert medical evidence in a claim of this nature. The absence of any direct engagement with the Claimant was not treated as a mere technical defect. It went to the heart of independence, reliability and transparency.
The judge was particularly concerned that conclusions about subjective symptoms and functional impact had been reached without any explanation of how those matters could have been assessed second‑hand. The report did not adequately identify the sources of information relied upon, nor did it explain the extent to which the expert’s opinions were constrained by solicitor‑provided materials. Attempts to bolster the report through subsequent witness evidence were viewed as unattractive, underlining that compliance must be apparent from the report itself.
Having found a breach of Part 35 and PD 16, the court went on to consider sanction. The claimant had not sought to cure the deficiencies by serving a compliant report, nor had there been any application for relief from sanctions. In those circumstances, and notwithstanding the modest value of the claim, the court held that strike out was not disproportionate. Allowing the claim to proceed would effectively shift the burden onto defendants to repair or investigate fundamentally defective evidence, contrary to the structure and purpose of the rules.
Why this matters
The decision sits comfortably within the existing case law. It does not establish that all desktop reports are impermissible. Rather, it reinforces the principle that the permissibility of a reporting methodology depends on context and scope. A report confined to interpreting existing data can be appropriate. However, a report seeking to prove diagnoses, causation and prognosis in a personal injury claim will usually require a proper medical history and, in most cases, some form of direct interaction with the claimant.
For practitioners and claims handlers, the decision is a reminder that PD 16.4.3 has real teeth. The requirement to serve a medical report with the Particulars of Claim is not satisfied by any document bearing that label. For defendants, the case demonstrates that early procedural challenges can be effective where non‑compliance is fundamental and unremedied.
More broadly, the judgment reflects judicial unease with process‑driven, low‑value litigation relying on evidence generated at arm’s length from the Claimant. While efficiency and proportionality remain important, they do not justify dilution of basic standards of medico‑legal practice.
Nicholas Grimshaw and Alex Taylor from Deans Court Chambers were instructed on behalf of the Defendants.
