Low-Level PI RTA Claims and departing from the pre-action protocol for Claimants

On 27 September 2022, His Honour Judge Bird gave judgment on this question in the case of Carla Louise Lully v Gillian Butler.

The Claimant was travelling as a rear seat passenger in a vehicle on 4 November 2020 which came into collision with the vehicle being driven by the Defendant as a result the Claimant suffered some minor personal injury.

The Claimant submitted a claims notification form through the RTA protocol on 10 November 2020, with the Defendant admitting liability on 11 November 2020.  Following a remote video assessment, the Claimant obtained a Medco medical report dated 15 December 2020 from Dr Lieberman.  The report was subsequently served on the Defendant on 23 February 2021 with a request for a stay pursuant to paragraph 7.12 of the pre-action protocol as the Claimant stated she was uncertain whether she would reach a recovery in line with the prognosis outlined in the report.

In his report Dr Lieberman noted damage to the Claimant’s left knee with bruising which faded after one week, pain to the lower lumbar spine and neck and although physiotherapy had been arranged it was only due to start shortly after the remote video assessment nevertheless Dr Lieberman felt able to give a provisional opinion that the Claimant should make a full recovery from her soft a few injuries after approximately 6 to 7 months.  The report made no reference to the need for a second report.

Alongside service of Dr Lieberman’s report, the Claimant made a request for an interim payment in the sum of £1,615.00.  The Defendant did not reply to the request for a stay nor make an interim payment, therefore on 18 March 2021 the Claimant notified the Defendant that a claim would now exit portal pursuant to paragraph 7.28 and commenced Part 7 proceedings on 30 March 2021.  The Defendant subsequently made a Part 36 Offer of settlement on 19 April 2021 in the sum of £3,690.00 which the Claimant accepted on 11 May 2021 and subsequently submitted a bill of costs.  The Defendant, however refused to pay same and the Claimant made an application seeking an order that the Defendant pay the Claimant’s costs.  The application came before Deputy District Judge Newstead-Taylor on 10 February 2022 who found that the Claimant was entitled to exit the portal in view of the Defendant’s failure to respond to the request for a stay and because the Defendant had failed to pay any sum by way of an interim payment.

The Deputy District Judge explained the decision in an extemporary judgment, noting that the issue of unreasonable exit protocol when stays refused was a “hotly contested area”.  The Deputy District Judge was following the unreported decision dated 17 September 2015 of District Judge Doyle in Luvin v Ageas Insurance Ltd (Luvin) where the District Judge was dealing with an application for an interim payment made under CPR 25 after proceedings had been commenced and where the district judge felt it was appropriate to address the issue of whether the Claimant’s exit from the portal was reasonable in doing so it was necessary to decide if paragraph 7.12 firstly required there to be a stay before a request for an interim payment could be made and secondly if so, if there could only be a stay if there was a need for a second report.

At this point it might be useful to look at what paragraph 7.12 says:

“Where the Claimant needs to obtain a subsequent expert medical report or a non-medical report, the parties should agree to stay the process in this protocol for a suitable period.  The Claimant may then request an interim payment in accordance with paragraph 7.13 to 7.16”

The joint position of the parties in “Luvin” was that there could only be a stay if there was a need or justification for a second report, however, Deputy District Judge Newstead-Taylor disagreed that the stay could only be requested if a further medical report had been recommended and decided that paragraph 7.12 could apply even in the absence of any need, justification or recommendation for a further report, relying on the fact that a Claimant might wish to delay settlement of her claim and gave 3 reasons why, going on to find that the Defendant’s failure to both respond to the request for a stay and failure to make an interim payment was unreasonable and it was therefore reasonable for the Claimant to leave the protocol and to commence proceedings.

Unsurprisingly the Defendant took a different view and lodged an appeal the grounds being:

  1. the Defendant’s failure to make an interim payment did not give the Claimant a valid reason to leave the protocol. No right to request an interim payment had arisen and a further medical report was not needed.
  2. the parties must agree to a stay before request for an interim payment can be made in the request for an interim payment was premature.
  3. in any event it was not reasonable for the Claimant to leave the portal.

The appeal came before His Honour Judge Bird at the County Court at Manchester who was referred to a decision which had not previously been put before Deputy District Judge Newstead-Taylor, namely Grayson v Fuller [2022] EWHC 211 QB the judgment being handed down on 28 January 2022 where the court needed to consider the correct interpretation of paragraph 7.8 B which states:

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. 

In particular the court had to consider the true meaning of the word “justified”.

The court concluded that “justified” meant “necessary for the claim” and that the court’s conclusion was reinforced by paragraph 7.12 the protocol, which in turn meant that the joint position of the parties in “Luvin” was correct and therefore the law was that an interim payment can only be requested at the paragraph 7.12 where a second medical report is “justified”.

Accordingly, as there was no need or justification for the Claimant to obtain a second medical report, the Claimant had no right to request an interim payment in circumstances that there was no obligation upon the Defendant to comply with paragraph 7.19 of the protocol and therefore the Claimant had no right to exit the portal.

Therefore, the appeal succeeded, and the Claimant was only entitled to recover fixed costs.

We here at PIC are happy to provide advice and assistance on all aspects of costs issues.


Barry Bennett, Costs Consultant