Court allows later medical reports despite failure to disclose first

A claimant failing to disclose a report at the first opportunity runs the risk of a costs sanction – but not the exclusion of their evidence, the court has ruled.

In Greyson v Fuller, Mrs Justice Foster DBE ruled that, while the RTA claims protocol was a ‘particular and stringent process’, the scheme allowed for discretion.

The dispute arose over medical reports disclosed to the defendant (following an RTA in June 2017) in a manner different to that set out in the protocol. The claimant’s first and subsequent reports were disclosed together in what is known as the stage 2 settlement pack, and after unsuccessful settlement negotiation the matter proceeded to a stage 3 hearing.

It was at that point the defendant raised the point that the disclosure of the reports was simultaneous and not sequential – and therefore not part of the RTA protocol that applied to accidents prior to May 2021. The first medical report, which found the claimant’s pain and injury would resolve in four months, was not immediately disclosed but instead was included with subsequent reports showing a longer recovery time.

The defendant argued the later reports were not ‘justified’ under the RTA protocol because the initial report was not ‘first disclosed to the defendant’. The scheme’s rules stated that a further medical report would ‘only be justified where… that report has first been disclosed to the defendant’.

The claimant submitted that the reference to sanctions in the relevant part of the protocol applied to costs and not admissibility.

His Honour Judge Petts permitted the further medical evidence to be relied upon despite the claimant not complying with the protocol and the first report not being disclosed as soon as possible.

Ruling on the defendant’s appeal, Foster said the protocol was ‘clumsily expressed’ but that the use of the word ‘justified’ had to be looked at in context. In this regard, she said, it did not relate to the admissibility of evidence.

She added: ‘If the claimant discloses reports via the portal in an unorthodox manner they run the serious risk of not recovering that cost from the defendant: the claimant will have to persuade the court that the defendant properly should pay.’