Sequential disclosure
Chartered Legal Executive Gary Claeys examines a High Court decision that brings certainty on the sequential disclosure of medical reports in road traffic accident cases
The recent High Court appeal decision of Greyson v Fuller [2022] EWHC 211 (QB) has resolved the question of what the sanction is for not disclosing medical reports sequentially within the pre-action protocol for low-value personal injury claims arising from road traffic accidents.
The claimant’s solicitors had disclosed two medical reports simultaneously, rather than sequentially as envisaged by the protocol. At the hearing for assessment of damages, the defendant, not having taken the point before, stated that the claimant was not entitled to rely on the second report as it was not “justified” within the meaning of the protocol.
The second medical report gave a longer prognosis period for the claimant to recover from injuries than the first report and therefore entitled them to greater damages. The first instance appeal judge held that the claimant was entitled to rely on the second medical report.
Mason v Laing
Previously, in the appeal case of Mason v Laing (20 January 2020), it was stated that the claimant could not rely upon a subsequent report, such as an orthopaedic surgeon’s report, where the first report – usually from a GP – had not been disclosed first.
This is because the relevant wording from the road traffic accident protocol states:
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.
In Greyson v Fuller, Mrs Justice Foster stated that the sanction for simultaneous rather than sequential disclosure of medical reports gave rise to the risk of sanction in costs at the end of the process, not the exclusion of the evidence.
She also agreed with the claimant’s submissions that the provisions of paragraphs 7.1 and 7.2 of PD 8B gave discretion to include materials including evidence not provided according to the protocol where “the court considers that it cannot properly determine the claim without it”.
She said in the judgment: “It would be extraordinary if, before that stage, the court were compelled to exclude mis-disclosed materials.”
No windfall for defendants
After the decision in Mason v Laing and with a High Court appeal pending in Greyson v Fuller, lots of claims where this issue arose had been stayed pending the decision.
If the decision had gone in favour of the defendant, it would have meant that many claims would settle at an undervalue, as the claimant would not be able to rely upon a later medical report with a lengthier prognosis. It would potentially have given the defendants a windfall because of a technical breach of the protocol by the claimant’s solicitors.
"If the decision had gone in favour of the defendant, it would have meant that many claims would settle at an undervalue"
An adverse finding on the appeal as far as the claimants were concerned would potentially have faced professional negligence claims.
Claims that have been stayed awaiting this decision will now either settle or proceed to final hearing on the basis of all of the medical evidence relied upon by the claimant, whether disclosed sequentially or simultaneously.
Finally, although the protocol has always been interpreted as a rigid code, Mrs Justice Foster importantly stated: “I accept that the defendant’s submissions about the character of the protocol – including that limiting medical evidence is clearly a part of the aim. I do not agree that the protocol ‘trumps’ the overriding objective of a just determination of cases, but I accept the rules are applied strictly. However, I disagree that that context compels the construction of those rules that he advances. I further do not accept that the protocol compels abandonment of the overriding objective.”
And with that, this long-controversial issue can be laid to rest and the claims affected can proceed to resolution on the basis of all the relevant medical evidence.
Gary Claeys is a Chartered Legal Executive and court advocate