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Justified medical reports: A matter for costs not exclusion. Marva Greyson v Ryan Fuller [2022] EWHC 211 (QB) - Rochelle Powell, Temple Garden Chambers

21/02/22. This High Court appeal decision confirmed that the “draconian reading” of 8BPD6 in Mason v Laing was incorrect and unwarranted. The sanction for simultaneous rather than sequential disclosure gave rise to the risk of not recovering costs at the end of the process, not the exclusion of the evidence.


The claimant obtained a number of medical reports under the RTA Protocol (“the Protocol”). However, these reports were disclosed to the defendant simultaneously, as opposed to sequentially as required under the Protocol. The issues before the court were whether the further medical reports were not “justified” within the meaning of paragraph 7.8B(2) of the Protocol; if so, what (if any) were the consequences for the claimant of the reports not being “justified”; and, if there were consequences, did they follow automatically or is it a case where the court must exercise its discretion to impose, or grant relief from, sanctions?

The defendant argued that the failure to disclose the first medical report before disclosing the further reports meant that the claimant was debarred from relying on any reports apart from the first one, while the claimant contended that, even if there had been a breach, there was no automatic sanction of inadmissibility and the claimant ought to be allowed to rely on the further reports at the Stage 3 hearing.

The Law

The RTA Protocol states at paragraph 7.8B(2) that:

Soft tissue injury claims – medical reports …

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

(3) where the claimant obtains more than one medical report, the first report must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal and any further report from an expert in any of the following disciplines must also be a fixed cost medical report –

(a) Consultant Orthopaedic Surgeon;

(b) Consultant in Accident and Emergency Medicine;

(c) General Practitioner registered with the General Medical Council;

(d) Physiotherapist registered with the Health and Care Professions Council.


CPR 8BPD governs Stage 3 proceedings, including for soft tissue claims and provides:

“5.1 An application to the court to determine the amount of damages must be started by a

claim form.

Filing and serving written evidence

6.1 The claimant must file with the claim form –

(1) the Court Proceedings Pack (Part A) Form;

(2) the Court Proceedings Pack (Part B) Form (the claimant and defendant's final offers) in a sealed envelope…

(3) copies of medical reports…


(1) In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report. Where the claimant includes more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal… and any further report from an expert in any of the following disciplines must also be a fixed cost medical report…

(2) The cost of obtaining a further report from an expert not listed in paragraph (1)(a) to (d) is not subject to rule 45.19(2A)(b), but the use of that expert and the cost must be justified…”


Refusing the Defendant’s appeal and allowing the Claimant’s appeal, Mrs Justice Foster held that the simultaneous disclosure had not amounted to a failure to properly serve in accordance with CPR PD 8B paragraph 6. As to the meaning of the word “justified” Foster J held that “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…” Accordingly, it did not relate to the admissibility of the evidence under the protocol and the sanction for simultaneous rather than sequential disclosure of was a matter for the costs stage, not exclusion of the evidence.

Concluding remarks

Mrs Justice Foster also pointed out that the rules were amended on 31st May 2021. The new rules do not provide for the first report to be sent in advance and eliminate the issues arising in this appeal.

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