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Greyson v Fuller: Potential impact on the RTA Protocol

The vast majority of claims for personal injury are covered by the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. This article examines paragraph 7.8B of the protocol, specifically the requirement that the first expert’s report must first be disclosed to the defendant before a further report becomes valid.

This discreet area of the protocol has come under particular scrutiny in the last year. This article addresses the now conflicting case law that has come about in situations where the claimant’s representatives obtained further medical reports without first disclosing the initial report to the defendants.

The issue with not first disclosing the initial report is that claimants risk the remaining medical reports being considered invalid and thus not able to be relied upon. This could have a catastrophic impact on a claim as it could leave the claimant with either a significant lower damages award or no damages at all. This makes this area of law of significant importance.

The leading case for some time was Mason v Laing (Unreported). In this case HHJ Gosnall dismissed an appeal from the lower court on the basis that the protocol was a prescriptive, self-contained code that had to be followed to the letter. It was also not open to parties to make applications for relief from sanctions under CPR 3.9 if they were in breach of this section of the protocol.

The ruling in Mason is of particular issue for claimants who run the risk of falling foul of this ruling should they fail to disclose the first report at the appropriate time. It is not clear if it were the intention of the draftsmen that the protocol should be so prescriptive as to not allow any room for correcting mistakes.

The same issue was considered by HHJ Petts in the case of Greyson v Fuller (Unreported). The writer appeared at the first hearing of this case before DJ Muzzafer at the Cardiff Civil Justice Centre. The matter was adjourned and came back before HHJ Petts at the same court. He came to an entirely different conclusion to the case of Mason, permitting the further medical evidence to be relied upon despite the absence of compliance with the protocol.

The case of Greyson has been heard on appeal in the High Court owing to the conflict between that case and Mason. If the case of Greyson is preferred, then the consequences for the protocol at large have the potential to be far-reaching. The protocol has generally been approached by practitioners as being a prescriptive set of rules for the conduct of low value personal injury claims. It would be of great assistance to claimants in that minor mistakes could then be corrected, either by consent or by an application for relief from sanctions.

The best advice is always to ensure the first report is disclosed as soon as it is approved by your client. However, this may not always be possible and the case of Greyson may soon assist in situations where this is the case.

At the time of writing the judgment is still awaited. However, it is anticipated to be handed down in the near future.

Andrew Gibbs-Ripley
30 July 2021

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