Decision in Greyson v Fuller Appeal

February 4, 2022

Caitlin Edwards

Marva Greyson -v- Ryan Fuller [2022] EWHC 211 (QB) concerned the interpretation of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol) in relation to service of medical evidence.

Background

The Claimant disclosed their first medical report alongside a number of subsequent other medical reports simultaneously. The Defendant argued that they should have been disclosed sequentially, and therefore they should be precluded from relying upon them.

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

The Defendant argued that 7.8B(2)(b) requires the Claimants to file the first report before the subsequent reports, and not at the same time, and therefore the subsequent reports in this case were not ‘justified’ as per 7.8B(2)(a) and should be considered inadmissible. Further, in reliance on the decision of HHJ Gosnall in Oliver Mason v Craig Laing [2019] 9 WLUK 584, where a medical report was not ‘justified’ in this way, then the requirements of PD8B 6.1 could not be met as PD8B 6.3 states:

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.

PD8B 6.3 was interpreted by the Defendant as meaning that documents had to have been sent in accordance with the Protocol rules, and if these reports weren’t ‘justified’, they must not be compliant.

Trial Judge HHJ Petts agreed with the Defendant’s interpretation of 7.8B(2) and PD8B 6.3 – i.e. sequential service of medical reports meant the subsequent reports were inadmissible. However, unlike HHJ Gosnall, and contrary to the Defendant’s arguments, HHJ Petts considered that the Claimant could seek relief from this sanction. HHJ Petts considered PD8B 7.1 relevant here:

7.1  The parties may not rely upon evidence unless –

  1. it has been served in accordance with paragraph 6.4
  2. it has been filed in accordance with paragraph 8.2 and 11.3: or
  3. (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.

It had to be asked whether the Claimant’s claim could be properly determined without the further medical reports, and the three stage approach of Denton v TH White [2014] EWCA Civ 906 was to be used. It was held that the Court did need all the medical reports in order to properly determine the claim and the Claimant was able to rely upon them.

The Appeal before Mrs Justice Foster DBE

Summary of Defendant’s arguments:

  • HHJ Petts had misinterpreted the terms of the RTA Protocol and had wrongly had regard to the PDPACP and the more general provisions of the CPR.
  • The approach that a relief from sanctions was possible was inconsistent with the ‘stringent scheme’ of the Protocol and had a ‘nullifying’ effect on 7.8B.
  • The scope of the discretion under PD8B 7.1(3) had been misinterpreted, as had the phrase ‘properly determine the claim’. While it may afford relief for a witness statement, the same does not apply for medical reports (Wickes Building Supplies Limited v William Gerarde Blair [2019] EWCA Civ 1934).
  • PD8B 7.1(3) is a narrow provision and doesn’t allow the implication of ‘fairly’ and ‘justly’ as found elsewhere in the CPR. The purpose of the Protocol is it’s efficiency, and this is protected by ‘clear and stringent discipline’.
  • The Claimant should not have had the opportunity to seek relief from sanctions both in principle and at the hearing due to a matter of procedural fairness.

Considerations of Mrs Justice Foster DBE

The meaning of “justified” in 7.8B(2)

  • Justified does not relate to the admissibility of the evidence under the Protocol, it is intended to mean that reports disclosed outside the strict provisions of the Protocol are not to be treated as automatically coming within ‘justifiable’ costs.
  • It is relevant, as per the Claimant’s arguments, that usage of ‘justified’ elsewhere in the relevant rules dealing with medical reports, personal injury actions and the Protocol, refers to costs implications.
  • The meaning of “Justified” must be ascertained by reference to the fact that the sanction of failing to recover costs is, throughout the scheme, a default sanction for compliance failures.

Failure to Serve under PD8B 6

  • In this case, the documents were disclosed, it was only the sequence of disclosure which was in error – the requirements of PD8B 6.4 were fulfilled.
  • The interpretation advanced by the Defendant in support of HHJ Petts decision is rejected.
  • I cannot accept that “Sent to the Defendant under the relevant Protocol” means there has not been proper service under PD8B 6 – this reading is convoluted, draconian, and unwarranted.

The appropriate sanction/relief

  • There was consideration of the case of Wickes, where the Court held that the issue fell to be considered under paragraph 7.1 of PD8B, namely 7.1(3), and the question of whether “the court considers that it cannot properly determine the claim without it”, it being the document in question.
  • This would allow even “ambush” evidence if the Court considered it necessary for proper determination. Therefore it follows that “justification” refers to the risk that a Claimant may not recover the cost of that evidence, but it is not an exclusion of the evidence itself.
  • I agree with the Claimant that a medical report not being “justified” per 7.8B(2) of the Protocol goes to the risk of penalty in costs rather than admissibility of the medical report.
  • The Protocol, while requiring strict compliance, does not “compel abandonment of the overriding objective” [51].
  • No further consideration was required here as for the reasoning above, these reports had been properly served.

Conclusion

  • Simultaneous rather than sequential disclosure of medical reports gives rise to a potential costs sanction, not exclusion of the evidence.
  • Simultaneous service did not amount to a failure to properly serve the Defendant under PD8B 6
  • It was not necessary to invoke PD8B 7.1(3) in order for the Claimant to rely upon these medical reports, as they were properly served.

Caitlin Edwards is a second six pupil at Exchange Chambers under the supervision of Chris Allen. She is currently accepting instructions in all aspects of personal injury work. 

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