Costs Sanctions for non-compliant medical evidence

In MP v Liverpool Victoria Insurance Company Limited the court ordered that the fees of the claimant’s orthopaedic expert for producing three reports were not recoverable due to a breach of the pre-action protocol.

The Claim

The claim arose from a road traffic accident in which a vehicle was reversed into collision with the claimant’s vehicle. Liability was admitted, but causation and quantum were disputed.

The claimant obtained a report from an orthopaedic surgeon and over the course of the claim obtained two further reports from him.

The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents applied. As such, the reports were required to be compliant fixed cost medical reports from an accredited medical expert obtained via the MedCo Portal. The reports did not quote a MedCo reference and requests for the reference went unanswered. The claim was dropped from the portal and litigated into Part 7.

The investigations and challenge

Keoghs was instructed upon litigation. Our investigations with MedCo revealed that whilst the expert was accredited, the instructing solicitors were themselves no longer registered with MedCo and seemingly could not have sourced the report via the MedCo Portal as required. Notwithstanding that the expert was accredited, the medical evidence, therefore, appeared non-compliant.

This breach of the rules was pleaded in the defence and was reiterated in the Directions Questionnaire with a request that a Directions Hearing be listed to consider the breaches and what, if any, permission should be given for medical evidence. The court granted the request and listed a hearing.

Ahead of the hearing we served and filed a statement setting out the relevant rules together with extracts from the White Book, the CJC’s Guidance for the instruction of experts in civil claims, and MedCo Guidance. We also referenced the judgment of HHJ Gosnell in Mason v Laing “… If the use and costs of medical reports is to be controlled … then the paragraphs of the Protocol that deal with the selection and disclosure of medical evidence, it seems to me, must have some teeth, and so there must be some effect if the claimant breaches a paragraph of the protocol”.

Our case was that if the claimant was unable to prove that the medical evidence was compliant with the rules then permission should not be given to rely upon it and/or that the claimant should not recover any of the medical fees.

The decision

Noting that the expert was accredited and suitably qualified and taking account of proportionality, the court granted permission to rely on the evidence. However, the court agreed that the claimant had breached the Pre-Action Protocol and the appropriate sanction was to prevent the claimant recovering the costs of any of the reports obtained to date or any further reports in the future. This resulted in saving the cost of three medical reports.

Commentary

Taking a firm and consistent stand in response to such breaches is the best way to challenge adverse behaviours and assist MedCo with its mission to monitor and ensure the quality of medical reporting.

As said by HHJ Gosnell in Mason v Laing the Protocols must have “teeth” to be of any effect. That case was in the Part 8 Stage 3 process wherein the rules are to be applied “strictly and prescriptively”. This claim by contrast had litigated into Part 7 and Part 35 of the Civil Procedure Rules applied giving the court a wider discretion when considering the medical evidence. Nevertheless, the Protocol and the similar rules set out at Parts 16, 35 and 45 indicate that there must be a sanction for non-compliance. Where the evidence itself appears otherwise complaint in terms of the expert’s own duties to the court that sanction will lie in costs, rather than debarral of the evidence. It is likely that the sanction would be borne by the solicitors themselves, which is ultimately where the fault lies.

It is also of note that the expert, unlike the solicitors in this case, has signed up to the MedCo user agreement. MedCo has indicated that an accredited expert should know that such claims must involve the use of the MedCo Portal and experts should not accept instructions without a MedCo reference. MedCo Rules No. 40 reads:  “Experts should inform MedCo if they believe they have been instructed to provide a MedCo Sourced Report but have not been provided with a MedCo reference after requesting one from the AU” As such, breaches of this nature may also be reported to MedCo.