Mason v Laing
Bradford County Court
20 January 2020
Summary
An appeal court has upheld a first instance decision that a claimant, who failed to comply with the RTA Protocol in respect of sequential disclosure of medical reports, could not rely on the reports of an orthopaedic surgeon and psychologist as the initial GP report had not been disclosed to the defendant prior to the subsequent reports being obtained.
Paragraph 7.8B(2) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents
This case focussed on Paragraph 7.8B(2) and the consequences of not complying with it. Paragraph 7.8B(2) states;
7.8B In a soft tissue injury claim -
(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;
Background
The claim arose out of a road traffic accident in which the claimant was injured. The claimant submitted their claim to the MOJ Portal under the RTA Protocol.
The claimant obtained a GP report which diagnosed soft tissue injuries and psychological problems. The claimant then went on to obtain further reports from an orthopaedic surgeon and a psychologist.
There was no dispute that this claim fell within the definition of a soft tissue injury as set out in Paragraph 1.1 (16A) of the RTA Protocol or that the GP had recommended further medical evidence be obtained.
All of the reports were uploaded to the Portal with the initial Stage 2 Settlement Pack. In their Stage 2 response the defendant objected to the claimant's reliance on the reports from the orthopaedic surgeon and psychologist because the claimant had not complied with Paragraph 7.8B(2)(b). There was no dispute that this claim fell within the definition of a soft tissue injury as set out in Paragraph 1.1 (16A) of the RTA Protocol, or that the GP had recommended further medical evidence be obtained.
The matter proceeded to a Stage 3 Hearing and the defendant maintained their position regarding the medical evidence.
First Instance Decision
At the Stage 3 Hearing Deputy District Judge Ellington held that the uploading of the three medical reports with the initial Stage 2 Settlement Pack did not comply with the provisions of Paragraph 7.8B(2)(b). The initial report had not been disclosed prior to the subsequent reports being obtained, and because the rules within the RTA Protocol are to be strictly applied the Deputy District Judge had no discretion.
As a result the claimant was not permitted to rely on the reports of the orthopaedic surgeon or psychologist. The Stage 3 Hearing was dealt with by valuing the claim in accordance with the initial GP report only.
The Appeal
The claimant appealed, arguing that the judge did not have the power to debar the claimant from relying on the subsequent reports and, if he did have the power, he chose to exercise it wrongly.
HHJ Gosnell upheld the decision of Deputy District Judge Ellington on the basis that if the obtaining of the reports is not justified by Paragraph 7.8B, then they should not be admissible and should not be considered by the Court.
The claimant's argument regarding discretion was irrelevant as it is a technical point that either the claimant has complied with the Protocol or they have not. There is a strict application of the rules in the Protocol and there is no provision in the Protocol for a party to seek relief from sanctions.
The appeal was dismissed.
Out of interest, the defendant failed to file a costs schedule for the appeal and HHJ Gosnell limited the defendant to recovering a reasonable figure for the brief fee for the appeal (£1,500 plus VAT).
Comment
This case reaffirms the prescriptive nature of the Protocols and the serious consequences for failure to comply with their provisions.
Paragraph 7.8B applies solely to soft tissue injury claims arising from road traffic accidents. Currently there is no provision for sequential disclosure of medical reports in non-soft tissue injury claims arising from road traffic accidents or for employers'/public liability claims.
In soft tissue injury claims, it is important to consider the medical evidence submitted by the claimant, usually with the Stage 2 Settlement Pack. If there are multiple reports and the initial report has not been disclosed then it should be argued that the remaining reports are not to be relied upon.
There is no need to remove the claim from the MOJ portal process if there has not been sequential disclosure. The issue can be raised in the Stage 2 Settlement pack response and in written/oral submissions should the matter proceed to a Stage 3 Hearing.
At DWF we regularly dispute the fees for medical reports which have not been properly disclosed under the RTA Protocol and consistently see these fees being conceded by claimants or disallowed at assessment. Following on from this decision the courts will likely take a more robust approach regarding sequential disclosure of medical evidence in RTA Protocol claims and claimants will find that they are not allowed to rely on medical evidence which has not been properly disclosed.
If you have any enquiries, contact Nicola Critchley or Katie Williamson for more information.
