MARVA GREYSON v RYAN FULLER

Under the pre-31 May 2021 RTA Protocol, the requirement that a further medical report be “justified” concerns the recoverability of its cost, not its automatic admissibility. Simultaneous disclosure of the first and later reports may expose the claimant to a costs sanction, but does not itself prevent reliance on the reports at Stage 3.

Where evidence has not been served in accordance with the Protocol, the court may admit it if the claim cannot properly be determined without it. That discretion imposes a high threshold, but the Protocol does not displace the court’s case-management powers or require an unduly draconian construction.

The claimant appealed against a preliminary ruling by HHJ Petts concerning a soft-tissue injury claim under the RTA Protocol. She had obtained a first medical report and later reports, but disclosed them together in the Stage 2 Settlement Pack rather than disclosing the first report before obtaining and disclosing the others.

The defendant argued that the later reports were not “justified” under paragraph 7.8B(2), that they had not been served under the Protocol for the purposes of Practice Direction 8B paragraph 6.3, and that they were automatically inadmissible. HHJ Petts held that the reports required permission but granted relief and admitted them. The appeal concerned the meaning of “justified” and the consequences of simultaneous disclosure.

1. Appeal dismissed; claimant’s cross-appeal allowed. The simultaneous disclosure of the reports created a risk of a costs sanction, but did not render the later reports inadmissible.
2. “Justified” in paragraph 7.8B(2) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents means that the further report is reasonably necessary and therefore potentially recoverable as a cost. It does not determine admissibility.
3. The Protocol’s stringent and self-contained character is principally enforced through financial discipline. A claimant who obtains or discloses reports outside the prescribed sequence risks losing recovery of the associated costs, particularly where the defendant takes the point.
4. The reports had all been disclosed in the Stage 2 pack, the defendant had considered them and made an offer, and no objection had been raised at that stage. Their simultaneous disclosure therefore did not mean that they had not been “sent to the defendant under the relevant Protocol” for the purposes of Practice Direction 8B paragraph 6.3. The requirements of paragraph 6.4 were fulfilled.
5. Wickes Building Supplies Ltd v Blair showed that evidence disclosed late may be considered under Practice Direction 8B paragraph 7 where the court cannot properly determine the claim without it. The phrase “properly determine” sets a high threshold and excludes evidence that is merely desirable, but no further decision on that discretion was required because service had been proper.
6. The Protocol did not compel abandonment of the overriding objective or an automatic exclusionary sanction. The defendant’s interpretation of paragraph 6.3 was convoluted and draconian and was not warranted by the wording or structure of the rules.

High Court (Queen’s Bench Division): appeal from the decision of HHJ Petts on the interpretation and consequences of non-compliance with the RTA Protocol. The appeal was dismissed and the claimant’s cross-appeal was allowed.