Key Point

The time to consider whether a case was a soft tissue injury claim was on the facts (not evidence) when the second report was disclosed


and


There was no requirement for the first report to be disclosed before the second expert was instructed, only disclosed


HOWEVER


just because reports were disclosed correctly did not mean costs would always follow

Abdulmalik v Calder

DJ Carter, Manchester CC, 2nd Feb 2022


The Claimant disclosed a GP report, then started Stage 2 of the MOJ Portal and disclosed both reports with the Stage 2 pack.  Damages were settled without a hearing.  


D argued that para 7.8A of the RTA Portal Protocol required the Claimant to disclose the first report before obtaining the second report.  C argued that the rules only required that the first report be disclosed before the second report is disclosed.  


In any event, C argued that the claim was not a soft tissue injury claim so the special rules in RTA Protocol cases did not apply to this claim.  D argued that the case only ceased to be a soft tissue injury claim on the receipt of the second report, and thus if the second report was inadmissible  because it had not been disclosed in accordance with the rules then the claim remained a soft tissue injury claim. 


The court found that this was a soft tissue injury claim, and that the time to assess that was when the subsequent report was disclosed.  At that stage in this case, the claim was no longer a soft tissue injury claim, and therefore the special rules did not have to be complied with.  However, even if he was wrong on that the judge went on to consider what 7.8B actually required and he concluded that the rules only required the first report to be disclosed before the second was disclosed.  There was nothing in the rules to support the contention held in Mason v Laing that the first report had to be disclosed before the second report was obtained/sought/instructed.  


The Defendant was refused permission to appeal.


Transcript of Judgment to follow.


Instructed by Steven Sherlock, Bespoke Costs Ltd