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MOJ portal- Part 7.8(b)…is it the end of an Era?

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By Cerys Lloyd, Kevan Smith, Stephanie Welsher & Emma Fuller

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Published 17 August 2022

Overview

The case of Mason v Laing has had significant consequences for Claimant Solicitors, with DAC Beachcroft seeing savings of over £110,000 in 6 months for one insurer client alone.

The Impact of Mason v Laing

The case of Mason v Laing has had significant consequences for claimant solicitors, with DAC Beachcroft seeing savings of over £110,000 in 6 months for one insurer client alone.

In Mason v Laing, the claimant’s solicitors had failed to disclose the initial medical report prior to obtaining further medical reports. The consequence was that the claimant was precluded from relying upon or recovering the costs of any reports other than the first medical report. The claimant’s solicitors uploaded three medical reports at Stage 2: a GP, an orthopaedic surgeon and a psychologist’s report, this being the first time that the defendant had sight of the claimant’s evidence.

The defendant served a counter offer at Stage 2 objecting that the claimant should not be able to rely on any report other than that of the GP, as there had been a breach of the RTA protocol 7.8(b). DAC Beachcroft acted in this matter when Part 8B proceedings were issued, and worked alongside Georgina Nolan of Parklane Plowden. In the first instance DDJ Ellington held that the claimant could not rely upon all 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 held that the protocol is to be applied strictly, with no provision for a claimant to seek relief from sanctions under CPR 3.9. (Full details of Mason v Laing can be found in Stephanie Welsher’s article “Actions have consequences…and sanctions")

Greyson v Fuller - the end of an era?

The claimant’s solicitors felt that the tide had turned upon the case of Greyson v Fuller [2022] EWHC 211, where it was held that the claimant was able to rely upon the reports served on the defendant at the same time as the initial GP report, and therefore being able to recover full damages for the claimant. A noteworthy point within the judgment of Greyson v Fuller was that it only referred to “sequential disclosure” of the medical reports and not disclosure after the instruction of the expert.

The defendant sought permission to appeal the outcome of Greyson v Fuller and on 29 July 2022, the Court of Appeal on paper refused permission.

Although this decision could be considered to be a pin in the argument, thanks to paragraph 48 of the original Judgment which explains that ‘justified’ within the meaning of 7.8(b) of the RTA Protocol “…goes to the risk of penalty in costs rather than the admissibility of the medical report”, there remain cost arguments in respect of the cost of the subsequently obtained reports.

Implications

Thanks to paragraph 48, this is not the end of the 7.8(b) argument and DACB has seen success in limiting claimant’s solicitors to portal costs on Part 7 matters and limiting claimant’s solicitors to recovering only the cost of the initial GP report and not the cost of any additional reports.

With around 88,000 matters still in the MOJ portal on a 12 month rolling basis, it is still a live issue and claimant’s solicitors breaching 7.8(b) of the protocol should still be challenged.

If you wish to discuss this further, please feel free to get in contact with our Motor Injury Team at DAC Beachcroft Claims Limited.

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