Marva Greyson v Ryan Fuller
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 28 January 2022 |
| Neutral Citation | [2022] EWHC 211 (QB) |
| Docket Number | Case No: CF010_2021CA |
| Year | 2022 |
| Court | Queen's Bench Division |
[2022] EWHC 211 (QB)
Mrs Justice Foster DBE
Case No: CF010_2021CA
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Oliver Moore and Ms Kriti Upadhyay (Junior) (instructed by Admiral Law Ltd) for the Claimant
Jonathan M Lally (instructed by BLM Law) for the Defendant
Hearing date: 19 April 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION AND THE ISSUE
This is an appeal from a decision of HHJ Petts on the interpretation of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”) version in force for claims arising on or after 31 July 2013 and before 31 May 2021.
It concerns a preliminary issue in the Claimant's claim for damages for personal injury arising from a road traffic accident on 28 June 2017. The claim is a “soft-tissue injury claim” under the RTA Protocol, and the dispute has arisen over medical reports disclosed to the Defendants in a manner different from that set out in the Protocol.
The Claimant's first and a number of subsequent medical reports were disclosed together to the Defendant in what is known as the Stage 2 Settlement Pack, and (unsuccessful) settlement negotiations took place on the basis of them. An offer was made by the Defendant in the usual course and rejected. The matter then proceeded to a Stage 3 hearing where, as a preliminary point, the Defendant argued the Judge was obliged to rule the Claimant could not rely upon the subsequent reports because their disclosure, being simultaneous, and not sequential, was outwith the letter of the RTA Protocol.
The Judge described the issue succinctly as follows:
“ 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?”
What had happened was the following.
The Defendant admitted liability for the accident promptly. In early August 2017 a report was obtained from the Claimant's GP concerning pain and injury, finding that it was likely to resolve in four months. That report was not immediately disclosed to the Defendant. The Claimant did not recover speedily as anticipated and she visited a specialist who examined her in January 2018. This orthopaedic consultant produced a report in April 2018 indicating that her symptoms were ongoing but full recovery of accident-related symptoms was expected by June 2018. An August report from the same consultant indicated the symptoms continued. Another October 2018 report showed that there was still lower back pain, and, on reviewing an MRI scan in January 2019, that consultant suggested review by a pain expert, because the MRI did not explain the presence of low back pain, two years post-accident. A report by the pain consultant dated 13 September 2019 attributed 50% of the low back pain to the accident with a prognosis period of 9 to 12 months from the date of examination.
The Stage 2 Settlement Pack together with all of the medical reports was submitted to the Defendant via the MOJ Portal on 13 March 2020. No point was taken at that stage that the first report and subsequent reports were disclosed simultaneously.
Offers and counteroffers were made but the case did not settle. Special damages were all agreed; the remaining dispute was as to damages for pain suffering and loss of amenity. The matter then proceeded from Stage 2 to Stage 3 and on 6 May 2020 the Stage 3 court proceedings pack was submitted, and a claim issued by the Claimant on 8 June 2020. An interim payment was made by the Defendant, according to the Protocol, of the sum offered by the Defendant. Further sums were paid in May 2020 towards disbursements.
Then, the day before the Stage 3 hearing in December 2020 the Defendant took issue for the first time with the Claimant's failure on 13 March 2020 to comply with the Protocol, during the Stage 2 process, namely the requirement in paragraph 7.8B(2) which states (with emphasis added):
“ Soft tissue injury claims – medical reports … 7.8B In a soft tissue injury claim –
(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
(3) where the claimant obtains more than one medical report, the first report must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal and any further report from an expert in any of the following disciplines must also be a fixed cost medical report –
(a) Consultant Orthopaedic Surgeon;
(b) Consultant in Accident and Emergency Medicine;
(c) General Practitioner registered with the General Medical Council;
(d) Physiotherapist registered with the Health and Care Professions Council.
…”
The Defendant argued below that the further reports were not “justified” under the RTA Protocol paragraph 7.8B because the initial report was not “ first disclosed to the defendant” which meant the further reports were automatically inadmissible and could not be relied upon at all in the Stage 3 hearing. That analysis had been accepted by another County Court in the case of Mason v Laing [20 January 2020] on which the Defendant relied.
The relevant Part of CPR 8BPD which governs Stage 3 proceedings including for a soft tissue claim such as this provides:
“ 5.1 An application to the court to determine the amount of damages must be started by a claim form.
…
Filing and serving written evidence
6.1 The claimant must file with the claim form –
(1) the Court Proceedings Pack (Part A) Form;
(2) the Court Proceedings Pack (Part B) Form (the claimant and defendant's final offers) in a sealed envelope…
(3) copies of medical reports;
(4) evidence of special damages; and
(5) evidence of disbursements (for example the cost of any medical report) in accordance with rule 45.19(2).
6.1A (1) In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report. Where the claimant includes more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal… and any further report from an expert in any of the following disciplines must also be a fixed cost medical report…
(2) The cost of obtaining a further report from an expert not listed in paragraph (1)(a) to (d) is not subject to rule 45.19(2A)(b), but the use of that expert and the cost must be justified.
6.2 The filing of the claim form and documents set out in paragraph 6.1 represent the start of Stage 3 for the purposes of fixed costs.
6.3 Subject to paragraph 6.5 the claimant must only file those documents in paragraph 6.1 where they have already been sent to the defendant under the relevant Protocol.
6.4 The claimant's evidence as set out in paragraph 6.1 must be served on the defendant with the claim form.
6.5 Where the claimant is a child…” [not relevant]
The Defendant argued that “justified” in the Protocol, meant, (as Mason had decided), that the rules had been exactly followed as intended under the prescriptive terms of the Protocol – not where they had been broken. Accordingly, the argument went, because there had been a breach of the Protocol it could not be said that the filing requirements of Stage 3 proceedings under 8PD 6.1 could be met for the later reports. This was because 8PD 6.1 required service of certain documents including medical reports, but 6.1 was qualified by 6.3 to the effect that nothing could be served under 6.1 unless “ sent to the defendant under the relevant Protocol”. The words “ under the relevant Protocol” imported the notion of sending to the Defendant strictly in accordance with the Protocol rules — which had not happened. Accordingly, the material could not form part of the Part 3 documentation served under 6.1. In Mason the argument that paragraph 7.1 of the Protocol could be used in such situations to disallow the costs of wrongly filed reports was rejected: 7.1 was to be used only where there was a refusal to pay for a report that was technically compliant.
The Claimant's case before HHJ Petts was that the reference to sanctions in the relevant part of the Protocol was a reference to costs, not to admissibility. She noted that the word “justified” appeared only twice in the applicable rules and PDs, namely at r.45.19 and 6.1A (2) (above) and in each case it was used in respect of costs. That argument is repeated by the Claimant as Respondent here.
The costs provision in CPR 45.19 is as follows (emphasis added):
“ Disbursements
45.19
(1) Subject to paragraphs (2A) to (2E), the court –
(a) may allow a claim for a disbursement of a type mentioned in paragraphs ( 2) or (3); but (b) will not allow a claim for any...
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