His Honour Judge Bird has overturned an order of DDJ Newstead-Taylor following a judgment finding that it was reasonable to remove a claim from the RTA protocol where the defendant failed to respond to an interim payment request.
The court found there must be a “need” for a further medical report in order to satisfy the requirements of paragraphs 7.12–7.28 of the RTA Protocol.
On 23 February 2021, the claimant served an Interim Payment Pack and medical report requesting an interim payment of £1,615 and a stay pursuant to paragraph 7.12 of the RTA Protocol on the basis the claimant was “uncertain as to whether [she] will recover in line with the prognosis”.
The defendant insurer did not respond and/or make any interim payment and the claimant exited the claim from the RTA Protocol on 18 March 2021.
On 30 March 2021, the claimant issued Part 7 proceedings and the claim settled on 11 May 2021 by acceptance of a Part 36 offer of £3,690.
The defendant disputed the claimant’s costs on the basis the exit from the RTA protocol was unreasonable and costs should be restricted to those under CPR 45.18 and CPR 45.19.
The claimant applied for determination of her costs and on 10 February 2022 DDJ Newstead-Taylor awarded the claimant costs in accordance with CPR 45.29C.
The defendant’s appeal came before His Honour Judge Bird who followed the guidance in Greyson v Fuller  EWHC 211 (QB) which, he said, provided clear authority for the proposition that a claimant can be said to “need” a subsequent medical report only where that report is “justified”.
HHJ Bird further found the decision in Luvin v Ageas Insurance Limited (2015) (unreported) had rewritten the Protocol, replacing the words “where the claimant needs to obtain a subsequent medical report…” to read “where a claimant would like to delay settlement…”. Consequently, HHJ Bird concluded that “although purposive construction can sometimes assist in filling in gaps, it should not be used to rewrite something akin to a rule”.
The court found the claimant had not complied with the RTA Protocol and, as a result, the claimant’s costs were limited to those contained within CPR 45.18 and 45.19.
It is nothing new for claimant solicitors and insurers to lock horns over the circumstances under which claims have exited the RTA Protocol.
The stay and interim payment provisions contained in paragraphs 7.12–7.28 of the RTA Protocol have been a slightly less common battleground, albeit that there has been a number of inconsistent County Court decisions on the subject.
The judgment of HHJ Bird provides welcome clarification in respect of the operation of these provisions and has reiterated that the protocol is a strict and rigid process which should not be deviated from.
Keoghs represented the defendant. If any further information is required then please contact
Ben Millns – Costs Draftsman
DD: 0161 329 7199
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