Is the service of medical evidence with proceedings mandatory?

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Is the service of medical evidence with proceedings mandatory?

Published 15 enero 2019

In claims for personal injuries, the Civil Procedure Rules 1998 (PD16 para 4.3) provide that "where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his Particulars of Claim a report from a medical practitioner about the personal injuries which he alleges in his claim"

What are the consequences of a failure to serve medical evidence with the Particulars of Claim?  This question was considered by the High Court in its recent judgment in Mark v Universal Coatings and Services Limited.

The Claimant, who pursued a claim for silicosis, issued proceedings shortly before the expiry of the limitation period, and his solicitors applied for an extension of time in which to serve the proceedings on the basis that they had not obtained expert medical evidence.

The proceedings were served, but neither medical evidence (as required by paragraph 4.3 of Practice Direction 16) nor a schedule of loss (as required by paragraph 4.2) were served.   The question considered by the High Court related to whether the Claimant's claim was struck out due to his failure to serve expert medical evidence or a schedule of loss with the Particulars of Claim.

Whilst the wording of the practice direction indicates that it is mandatory for medical evidence and schedule of loss to be served with the Particulars of Claim, it does not provide a sanction for failure to comply with its provisions. 

Noting that, in some more complex cases, it can be necessary for proceedings to be served before meaningful medical evidence is obtained, and the fact that in many cases the initial schedules of loss served indicate unquantified heads of loss, Mr Justice Martin Spencer decided that the breach of the rules of the Claimant was not at a level at which relief from sanction was required.

Where a Claimant has failed to serve medical evidence or a schedule of loss with the Particulars of Claim, the Defendant may seek an Order requiring the Claimant to serve the documents within a specified timetable, but without such an Order the Claimant is not subject to sanctions preventing his pursuit of the claim.

Authors

David Williams

David Williams

Leeds

+44 (0)113 251 4844

Peter Allchorne

Peter Allchorne

Bristol

+44 (0) 117 918 2275

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