Key Point

Disclosure requirements of a Subsequent Medical Report in a Soft Tissue Injury Claim under para 7.8B RTA Protocol - when such reports are 'justified' and the sanction for non-compliance

Greyson v Fuller [2022] EWHC 211 (QB)

The High Court decision

In this case the Claimant disclosed all reports simultaneously at the start of Stage 2 in a soft tissue injury claim.  That was a breach of para 7.8B(2)(b) of the RTA Portal Protocol, which requires the first report to be disclosed before the subsequent report.  That meant the subsequent report was not 'justified'.  However, at first instance the court granted the claimant 'Relief from Sanctions' and allowed the report in.


On appeal the High Court considered whether the subsequent report was justified.  At [35] Mrs Justice Foster DBE considered that 'justified' did not go to the admissibility of the evidence, but that medical reports disclosed other than in compliance with the protocol was not to be treated, without more, as automatically coming within 'justifiable costs' and to be be payable.  At [41] the court noted the difference between the requirement during the protocol period for the reports to be 'disclosed' whilst PD8B imposed certain requirements on the reports being 'served'.  There is no requirement for service during the pre-action period.  The reports in this case were all disclosed, and then for Stage 3 they were all served as required under the rules.  At [43] the court noted the PD had clear mechanisms for dealing with evidence not disclosed, and the consequences of it, noting these were stringent.  Attention was paid to Wickes Building Supplies Ltd v William Gerarde Blair [2019] EWCA Civ 1934, where a witness statement sent a couple of days after the end of Stage 2 was excluded at Stage 3.  At [45] the court noted that 'ambush' evidence can be allowed under 7.1(3) of PD8B, which the judge considered suggested that the Stage 2 requirement for justification referred to the risk that the Claimant would not be paid for that evidence, rather than that th evidence itself would be excluded.  AT [46] the court found that 'justification' connotes need, and that was reinforced by para 7.12 of the protocol, referring as it does to where a 'claimant needs' a subsequent report.  That gave a rationale to the sequential disclosure approach that the protocol required, that parties could stay the proceedings if required, conduces an inexpensive resolution of such cases.  At [49] the judge noted that the Claimant had argued that 7.1 and 7.2 of PD8B gave a clear discretion to include materials not provided according to the protocol.  The court agreed that it would be extraordinary if, before that stage, the court were compelled to exclude mis-disclosed materials.


Main Findings:

a) The sanction for simultaneous rather than sequential disclosure of reports is costs at the end of the process, not exclusion of the evidence

b) There was no failure to properly serve the Defendant under PD 8B para 6.

c) There was no need to use para 7.1(3) of PD 8B to rely on the additional reports.



As the reports were disclosed at the same time, there was no argument over whether 7.8B(2)(b) meant the first report had to be disclosed before the subsequent report was 'obtained/instructed' etc.  However, it is noteworthy that at para 55(i) the judgment refers only to 'sequential disclosure' not disclosure after instruction, etc.

The Appeal Judgment

The First Instance Decision

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of the 1st instance judgment

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