MOJ Portal – Part 7.8(b)…is this the end of an era?

The impact of Mason vs. Laing

The affair of Mason vs. Laing had significant implications for claimants, with DAC Beachcroft saving over £110,000 in 6 months for a single insurer client.

In Mason vs. Laing, plaintiff’s attorneys had failed to disclose the initial medical report before obtaining further medical reports. The consequence was that the Claimant was unable to rely on or recover the costs of any report other than the first medical report. Plaintiff’s lawyers uploaded three Stage 2 medical reports: a GP, an orthopedic surgeon and a psychologist’s report, this is the first time the defendant has seen the plaintiff’s evidence.

The defendant submitted a counter-offer at Stage 2, objecting that the plaintiff should not be able to rely on any report other than that of the GP, as there had been a breach of RTA 7.8(b). DAC Beachcroft acted in this case when the Part 8B procedure was issued and worked alongside Georgina Nolan of Parklane Plowden. At trial, DDJ Ellington found that the Claimant could not rely on all of the reports and relied on the reasoning that they had been uploaded to the Claims Portal sequentially. On appeal, the decision was upheld by HHJ Gosnell. It was felt that the protocol should be strictly enforced, with no provision for an applicant to seek relief from penalties under CPR Article 3.9. (Full details of Mason vs. Laing can be found in Stephanie Welsher’s article “Actions Have Consequences…and Punishments”)

Greyson vs. Fuller – the end of an era?

Plaintiff’s attorneys felt that the tide had turned on the case of Greyson vs. Fuller [2022] EWHC 211, where it was held that the plaintiff could rely on the reports served on the defendant at the same time as the initial report of the general practitioner, and could therefore obtain full damages for the plaintiff. A remarkable point in the judgment of Greyson vs. Fuller was that it only referred to “sequential disclosure” of medical reports and not disclosure after expert instruction.

The defendant requested leave to appeal the result of Greyson vs. Fuller and on July 29, 2022, the Court of Appeal denied leave on paper.

Although this decision can be seen as a pin in the argument, thanks to paragraph 48 of the original judgment which explains that “justified” within the meaning of Article 7.8 (b) of the RTA Protocol “… relates to the risk of sanction in costs rather than to the admissibility of the medical report”, there are still cost arguments regarding the cost of the reports obtained afterwards.

Consequences

Thanks to paragraph 48, this is not the end of argument 7.8(b) and the DACB has succeeded in limiting plaintiff’s attorneys to portal fees on Part 7 matters and limiting plaintiff’s attorneys to recover only the cost of the initial GP report and not the cost of any additional reports.

With approximately 88,000 cases still on the MOJ portal on a rolling 12-month basis, this is still a live issue and plaintiff attorneys who violate Protocol Section 7.8(b) should still be contested.

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