Dere Street’s Pupil Deck

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The long-awaited appeal in the case of Greyson v Fuller [2022] EWHC 211 (QB) was handed down recently. The initial case concerned whether the Claimant was allowed to disclose and rely on a second medical report due to the fact they had not disclosed the first medical report prior, in accordance with paragraph 7.8B of the RTA Protocol. In the appeal, Foster J confirmed that the principles in Mason v Laing were excessively draconian and the failure to disclose the first medical report prior to the second did not mean that the second report should be excluded.
Case background and relevant law:
The claimant disclosed all of her medical reports simultaneously to the defendant in her stage 2 settlement pack. The defendant made a settlement offer that was rejected and the matter proceeded to Stage 3 hearing. At the hearing the defendant put forward the argument that the claimant could not rely on the subsequent reports because they had been disclosed simultaneously and not sequentially in accordance with paragraph 7.8 of the RTA Protocol.
Paragraph 7.8B(2) of the RTA Protocol:
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;
 The defendant stated that the further reports were not justified because the first report had not been disclosed to the defendant and therefore the subsequent reports were automatically inadmissible and could not be relied upon at the hearing. At first instance HHJ Petts considered sanctions around the question of evidence, PD8B paragraph 7.1(3) refers to circumstances in which the claim ‘cannot be properly determined’ without the further medical reports. ‘Properly determined’ involved wider consideration than whether it is technically feasible to assess damages without a particular piece of evidence. HHJ Petts held that Denton v White criteria applied and, in those circumstances, allowed the medical reports to be included in the claim. The defendant appealed on the basis that the RTA protocol has been misinterpreted in favour of the claimant in a manner that was inconsistent with the aims of the Protocol.
The appeal:
The appeal focused on the meaning of the word ‘justified’, which according to HHJ Gosnell in Mason v Laing took on an absolute nature that barred the evidence from being considered. However, Foster J held that:
“In my judgment the meaning of ‘justified’ must be ascertained by reference to the fact that the sanction of failing to recover costs, is written through every part of the scheme as the default sanction for compliance failures, it is notable that where the Practice Direction 8B gives power to exclude to include evidence its terms are clear.”
There was also reference to the word ‘justified’ being used in paragraph 7.8 of the Protocol for non-soft tissue injuries in a way that was not the different, more draconian meaning of the same word in paragraph 7.8B. Foster J concluded that:
“Accordingly I agree with the Claimant that a medical report not being justified per paragraph 7.8B(2) of the RTA Protocol goes to the risk of penalty costs rather than admissibility of the medical report”.
Broadly speaking, the appeal concluded that failure to disclose the first medical report before the second medical report should not mean that the second report is excluded under the protocol but that instead it should be dealt with by penalty costs. This is further supported by paragraph 7.6(3) which clearly states that where a further medical report is not justified the claimant may not be able to recover the fees paid for the further report.
Changes to the protocol:
While it is clear the case of Greyson v Fuller has provided some meaning on the wording of paragraph7.8B it has also shone a light of the need for clarity. It will therefore come as no surprise that the protocol has been amended.  A new paragraph 7.8C has recently been added which helps to clarify the position and which effectively replaces 7.8B(2).
7.8C of the RTA Protocol:
(1) The provisions of paragraph 7.8A and 7.8B apply in respect of a medical report obtained under this paragraph, save that—
(a) any reference to soft tissue injury claim is to be read as referring to a claim which consists of, or includes, a claim for whiplash injury;
(b) paragraph (2) below applies in place of paragraph 7.8B(2).
(2) A further 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;
(b) the first medical report recommends that further time is required before a prognosis of the claimant’s injuries can be determined;
(c) the claimant is receiving continuing treatment; or
(d) the claimant has not recovered as expected in the original prognosis.
The Decision in Greyson v Fuller has demonstrated that the rules clearly set out consequences where needed and that such simultaneous disclosure of medical reports is now a matter to be considered in costs not through exclusion of the reports. As such, will we now start to see the back of such arguments suggesting the rough and ready nature of the Portal process means that harsh and strict lines need to be taken. The rules within the protocol clearly set out explicit consequences where needed. The amendment to the Protocol upholds the overriding objective while also accepting that the rules need to be strictly applied and that the decision in Greyson v Fuller will hopefully mean a return to some common sense.