Greyson v Fuller – A Practical Application (Curtis v Lucking)

This blog is written by Henry King who appeared for the successful Defendant in Curtis v Lucking. The decision in Curtis followed the recent approach of the High Court in Greyson v Fuller [2022] EWHC 211 which highlighted the “highly prescriptive” nature of the pre-action RTA protocol (‘the protocol’) and portal governing MOJ stage 1, 2 and 3 proceedings.

The Facts in Greyson

  • On 28 June 2017, the Claimant (‘C’) and Defendant (‘D’) were involved in an RTA for which D was at fault.
  • On 3 August 2017, C saw a GP expert. The GP advised a 6-month prognosis for total recovery. If C did not recover within 6-months, the GP recommended a further report.
  • C did not recover in line with the expected prognosis and obtained further reports from an orthopaedic expert and a pain management expert.
  • All three reports were disclosed at the same time to the D with the Stage 2 settlement pack.
  • The matter did not settle at stage 2. The matter proceeded to stage 3.
  • The day before the stage 3 hearing, the Defendant served a witness statement taking issue with the service of the medical report on a strict reading of 7.8B, below. The matter was adjourned for full consideration and listed before HHJ Petts (formerly of 12KBW).

The RTA Protocol

Per the RTA Protocol, at 7.8B(2), a further medical report will only be “justified” where it is recommended by the first expert (which it was), and that first report was disclosed to the Defendant

The Decision of the Circuit Judge

In summary, on 19 February 2021 the circuit judge found that:

Paragraph 7.8B of the RTA protocol sets out two conditions for a further medical report to be justified. The first was satisfied. The second was not. Accordingly, the reports were not justified ([@8-9]). The Claimant submitted that 7.8B was a guide, rather than prescriptive. That was rejected by the judge [@ 11]. The judge held that the whole point was (in effect) to keep the Defendant in the loop through disclosure ([@ 12]). The Claimant submitted that 7.8B was a guide, rather than prescriptive. That was rejected by the judge [@11]. The judge held that the whole point was, in effect, to keep the Defendant in the loop through disclosure ([@12]).

However, the judge went on to reject the Defendant’s position that the fact that the reports were not justified meant that they were irredeemably inadmissible ([@ 27vi])

The judge, of his own volition, considered a relief from sanctions test was appropriate ([@ 30; 35]). Following Denton, the judge held that the Defendant’s position was opportunistic [@ 38]. He granted relief [@ 44]. He further held that the breach of 7.8B did not make it appropriate to disallow the costs of obtaining the further reports in principle, but that this could be argued at the adjourned Stage 3 hearing [@ 45].

As to the costs, the judge found that the matter had not left the stage 3 ‘arena’ and so awarded the Claimant fixed costs of £250+VAT (the stage 3 advocacy fee) ([@ 53]). He declined the Claimant’s invitation to transfer the matter to part 7 to allow greater costs recovery on the basis that such a course of action would be “to allow the tail to wag the dog” ([@ 54]).

The Defendant was granted permission to appeal on a point of public importance. This was because in Mason v Laing [2019] 9 WLUK 584, HHJ Gosnell had held that a relief from sanctions analysis cannot arise in a protocol case on the basis that:

  • It is not set out in the highly prescriptive process; and
  • The protocol must have “some teeth and there must be some effect if the Claimant breaches the protocol” ([@ 13]). Those teeth were, in that case, excluding the report and the costs thereof.

The Decision of the High Court

The matter came before Foster J one year later on 3 February 2022. After reciting the history of the case and the parties’ submissions [@1-33], the judge held as follows:

  • If a Claimant’s medical reports are not disclosed in accordance with the protocol, or in an “unorthodox manner”, the Claimant runs a “serious risk” of not recovering those costs and has to persuade the Court the Defendant should properly pay – if the Defendant takes the point ([@ 35]);
  • The overall structure of the protocols is to provide a disciplined and self-contained process that aims at the speedy and proportionate resolution of low value, liability admitted claims by imposing, pre-eminently, “a financial discipline” ([@ 37], emphasis original).
  • Accordingly, where a report is not justified, because of (say) a failure to disclose it in accordance with the rules, the penalty is failing to recover costs which is “written through every part of the scheme as the default sanction for compliance failures” ([@ 38] and [48]).

Curtis v Lucking

Facts

  • On 25 August 2018, C and D were involved in an RTA for which D admitted liability.
  • On 19 December 2019, C underwent an MRI scan at a cost of £650.
  • On 27 July 2020, the C sent the Stage 2 settlement pack. The MRI scan was not included as a disbursement.
  • On 29 September 2020, settlement was agreed. C’s representative sent details of their disbursements. The MRI scan was not included.
  • On or around 26 October 2020, the Defendant had paid the damages and disbursements claimed in full.
  • On 21 December 2020, i.e. two months later, the C’s representatives wrote to the D seeking payment of the MRI fee.
  • In the event, Part 8 proceedings were issued for the recovery of the MRI fee and, in due course, a detailed assessment listed before DJ Davies.
  • On 10 March 2021, the detailed assessment took place.

Point in Issue

Aside from the fact that the C sought to recover the costs of the MRI scan as a disbursement, two months after the file had been closed for a further disbursement, the case centred around whether, by analogy, Greyson applied and whether the sanction for failing to disclose the MRI scan meant that the costs could not be recovered. The provision for disbursements is included in  paragraph 7.32 of the Protocol:

Submitting the Stage 2 Settlement Pack to the defendant

7.32 The Stage 2 Settlement Pack must comprise—

(4) evidence of disbursements (for example the cost of any medical report);

Submissions

The Defendant submitted that evidence of disbursements means all disbursements i.e. at the point of the pack, the Claimant is presenting the full extent of his or her claim, including disbursements. Therefore, a failure to provide a disbursement meant that the cost could not be recovered. The Defendant relied on the passages of Mason v Laing and Greyson v Fuller above.

The Claimant argued that this is not what 7.32 said. The Defendant was reading in the word “all” which was not there. In the alternative, this sanction contended for by the Defendant was not written into the protocol and accordingly there was no such sanction.

Decision

The judge found that the fee could not be recovered. He held that 7.32 meant evidence of all disbursements regardless of whether it said “all”. This was because it would be “tautologous” to include the word “all” as it was clear from a plain reading of the provision. Further, the judge was greatly assisted by the case of Greyson. He held that whilst on a different point (a medical report rather than a disbursement); fundamentally the same issue was at stake. Given the decision in Greyson, the sanction must be failing to recover costs. Accordingly, the MRI fee was not allowed.

Comment

As DJ Davies said in his judgment, the word “prescriptive” is used more times in relation to the Protocol than any other part of the CPR. This decision indicates that the “serious risk” outlined by Foster J will be upheld by County Courts (unless there is a good reason not to) in relation to all facets of the protocol, including disbursements. This is to be applauded. The whole point of the fixed costs regime is certainty. Such decisions promote certainty between the parties, and ensure that the rules are applied, and the protocol followed.

Practical Takeaways

  • The RTA protocol is highly prescriptive. A failure to comply with its express provisions will likely lead to a sanction.
  • That sanction will likely be the failure to recover costs.
  • This applies to medical reports and disbursements.

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