Is serving medical evidence with Particulars of Claim mandatory?

I have recently had a number of solicitor clients asking me whether it is mandatory to serve medical evidence when serving Particulars of Claim. This question has taken on a renewed importance in light of the current COVID-19 crisis as many Claimant solicitors struggle to obtain medical evidence within the limitation period. This area is one in which the rules as laid down in Part 16 and the Practice Direction to Part 16 does not always reflect the approach taken by the courts. This note will summarise the position and provide some guidance going forward.

The starting point is Part 16 of the Civil Procedure Rules:

  • (1) Particulars of claim must include –
    • (a) a concise statement of the facts on which the claimant relies;
    • (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
    • (c) if the claimant is seeking aggravated damages or exemplary damages, a statement to that effect and his grounds for claiming them;
    • (d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
    • (e)such other matters as may be set out in a practice direction.

Paragraph 4.3 of the Practice Direction to Part 16 further stipulates:

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.

Without descending into a forensic examination of the language of the rules it is noteworthy that the use of ‘is relying’ is drafted in the present tense. The situation arises whereby a Claimant ‘will be relying’ (future tense) on medical evidence which is not available at the point of serving. It is trite to those practicing within personal injury litigation that the claim will not succeed without medical evidence to satisfy the test of causation. The rule does not make express provision for such a situation which gives rise to the possibility of an arbitrary approach.

The most recent and authoritative guidance on this question was given by Spencer J in Mark v Universal Coatings & Services Limited[2018] EWHC 3206 (QB) at paragraph 49:

It seems to me that 16 PD.4 sets a benchmark because it is a practice direction which covers all personal injury claims from the most simple to the most complicated but which, in many of the more complicated cases, is honoured more in the breach than in the observance where the parties sensibly recognise the limitations of what can be achieved at the early stage of service of the Particulars of Claim. Thus, a defendant’s advisors will often agree that service of a medical report and schedule of loss at that stage is pointless. However, as I have stated, the defendant always has the option of recourse to the court.

Spencer J made two things clear in Mark v Universal Coatings & Services Limited:first, CPR PD 16.4.3 does not contain an implied sanction and therefore the principles of relief from sanction were not engaged; second, the onus is on the Defendant to make an application, where appropriate, when there has been a failure to serve medical evidence.

Spencer J also recognised that in complex cases it will often be pointless serving medical evidence at the same time as the Particulars of Claim. Whilst the judge did not explicitly draw a line between low complexity claims and high complexity claims there is a perception that such a distinction does exist. This is so because he explicitly left the door open to Defendants to revert to the court.

How does this help a Claimant who is struggling to obtain medical evidence before the expiration of limitation or before the date for service? The Claimant can serve safe in the knowledge that they have not fallen foul of any sanction. A note of caution though, in low-value low complexity cases, typically RTAs, a Defendant is likely to make an application to strike out and/or summary judgment on the basis that the Claimant’s case, at that point in time, cannot satisfy causation and therefore has no reasonable prospect of success.

Moving forward, the following guidance and practical points can be gleaned:

  1. Whilst CPR PD 16.4.3 is drafted as a mandatory provision, it does not contain an implied sanction.
  2. Proceedings are not to be considered defective if there is no medical evidence at the time of serving the Particulars of Claim. The Claimant can rest assured that the claim has been issued and served within time.
  3. A failure to serve medical evidence at the same time as the Particulars of Claim leaves open the possibility of the Defendant making an application to the court for a strike out and/or summary judgment. If the medical evidence is served before the hearing the Defendant’s application will likely fail.
  4. A pragmatic approach should be taken by parties in light of the case at hand. Where assurances have been provided that medical evidence will be served recourse to the court by the Defendant is unlikely to be successful. This is especially important if the reason for the delay is due to COVID-19.

Charles Austin

31stMarch 2020

Immigration Law Newsletter – December 2019

The first edition of the Complete Counsel ‘Immigration Law’ newsletter is now available for download.

It features an article on ‘the DO NOT’s of adducing evidence in asylum claims
based upon sexual orientation’ by our barrister Lorraine Mensah.

Click here to view the PDF.

Michelle Fanneran in the latest PIC Magazine

Complete Counsel barrister Michelle Fanneran appears in the Winter 2019 issue of the PIC Legal Magazine.

View the magazine online here – Michelle appears on page 12 where she writes about inquest costs. Visit the PIC Legal website here for more information.

Michelle Fanneran features in Liverpool Law Magazine

In the latest update from Complete Counsel, Liverpool Law Magazine posed some questions to Michelle Fanneran about her career and how Complete Counsel differs from others Chambers.

Click here to read the article and others.

Can Flexible Working Really Work in a Barrister Environment

Five years ago, Claire Labio, Emma Wall and Helen Southworth worked in the same barristers chambers as they had done for many years. They each had specific roles and worked fixed long hours, predominantly at a desk.

Now they share the management of three businesses, Complete Counsel, Complete Mediation and Facilitate Expert Solutions, as well as supporting Pro-VIDE-Law, a pro bono training and education initiative. They each have a defined focus in the management of the businesses.

Click here to read the full article (page 38).

Charles Austin in Liverpool Law Magazine

Charles Austin appears in the September 2019 issue of the Liverpool Law Magazine:

The Court of Appeal decision in Goldscheider v Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711 is important for employers. It raises the question whether Section 69 of the Enterprise and Regulatory Reform Act 2013 would have altered the decision.

Click here to read the issue. Charlie’s article can be found on page 32.

Who knows what the future holds? – Charles Austin in Liverpool Law Magazine

Charles Austin was featured in the latest issue of the Liverpool Law Magazine.

Having recently qualified I have to admit to being somewhat disconcerted about the sustained gloom that characterised the conversation of established practitioners. Clearly change is on the way. Older heads tell me that change and dire predictions about it are a constant at the Bar. Yet the Bar seems to survive and indeed prosper. However, there can be no doubt that the Civil Liabilities Act 2018 and its consequences will substantially reduce the work for junior civil barristers many of whom get by on a diet of whiplash based claims

View the full article on page 28 here.

Costs consequences of late acceptance of a Defendant’s downgraded offer

This article first appeared in the March 2019 edition of the Liverpool Law Society magazine

What are the costs consequences when a Defendant makes a Part 36 offer and then without withdrawing it simply reduces the value of that offer under CPR 36.9, thereby leaving the offer open for acceptance throughout – but in its downgraded state? Should the reduction be treated as a new offer, thereby entitling C to a new 21-day period for consideration? This issue was considered recently in a County Court case in which I acted for the Defendant.

The claim arose from an RTA which was uploaded to the portal. Proceedings were issued and shortly afterwards in October 17, the Defendant made a Part 36 Offer of £17,000. That offer expired in early December, following which the matter was allocated. In March 18 the Defendant notified the Claimant that the terms of the offer had been varied to offer £10,000, i.e. the offer had been downgraded. The matter was listed for trial but 11 days before the trial, the Claimant accepted the £10,000.

The parties agreed that, pursuant to CPR 36.20(4), as a result of accepting the offer out of time C was entitled to costs for the stage applicable at the date on which the ‘relevant period’ expired and that the claimant was liable for the defendant’s costs for the period from the date of expiry of the relevant period to the date of acceptance, but there was a dispute between the parties as to when the relevant period expired.

D contended that there was just one offer and therefore C was entitled to costs limited to the expiry of the initial Part 36 offer (post-issue/pre-allocation) and C had to pay D’s fixed costs calculated as the difference between the costs applicable at the time when the offer was accepted (post listing/pre-trial) and the costs to which C was entitled (post-issue/pre- allocation). By contrast, C contended that C was liable to pay only those costs arising after the expiry of 21 days following the revision of the offer and thus from 6th April 18 (post-listing /pre-trial).

The parties agreed that the question for the Court was when the ‘relevant period’ expired.

D argued that there had been only one offer and that the variation simply meant that the terms of that offer had been changed pursuant to CPR 36.9 which permits an offeror to change the terms of the offer without permission. CPR 36.9(5) expressly provides for an upgraded offer to create a new offer and a new period of 21 days in which to consider it. D argued that the Court could infer that if the draftsman had intended that a downgraded offer would amount to a new offer he would surely have drafted 35.9 to apply to any varied offer rather than only an improved offer.

D further argued that the Court need only step back and look at the justice of the situation; if an offeror decides that the existing offer is too low and that more should be offered, it is only right that C recover the costs for the period between expiry of the first offer and the expiry of the improved offer (which, pursuant to 36.9(5) is a new offer) since the improved offer shows that C was justified in not accepting the lower offer and entitles C to time to consider the improved offer. However, where an offer is revised downwards, C has in effect had the opportunity to accept a sum equal to or greater than the settlement sum since the offer was made (in this case since October 17). In these circumstances C was not justified in declining to accept the offer and causing D to incur continuing costs for 9 months after expiry of the higher offer. Moreover, justice demanded that C ought not to be compensated for recovering less than the sum that had initially been on offer.

The Claimant argued that the immediate impression given was of two offers, especially since the event which triggered the settlement of the case was the ‘second’ offer. C argued that the purpose of Part 36 was to encourage parties to settle and that an offer had to be taken in context. At the stage C accepted the offer a trial was looming and the perception of risk had changed. C argued that the earlier offer had impliedly been withdrawn and D ought not to have the costs benefits of that offer when it was no longer available for acceptance.

C argued that there was no express provision in the rules which set out the relevant period where an offer was downgraded and therefore it would be dangerous to draw any inference from the rule about upgraded offers attracting an extra 21 days. Had the rule drafters intended that downgraded offers would not attract an extra 21 days then given that they went to the trouble of making an express provision as to the existence of a second ‘relevant period’ when an offer was upgraded, the fact that nothing had been said about downgraded offers could not give rise to any inference at all.

Having heard the argument, the Deputy District Judge accepted D’s proposition because he found that it would be unjust to award costs to C for the extra period.

Although this was a fixed costs case there are parallels with the operation of 36.13(5) in standard costs cases which require the Court, unless it considers it unjust to do so, to order that C have costs up to the date on which the relevant period expired and that the offeree pay the offeror’s costs thereafter, until acceptance. In deciding if it is “unjust’ the Court must consider ‘all the circumstances’ including the list of factors in 36.17(5), hence there is potentially a higher hurdle to cross. However, in the writer’s view, the injustice of an offeree having costs for a period after expiry having declined to accept the earlier offer and later settled for less, will weigh heavily in the balance against the other factors.

Michelle Fanneran, Barrister Complete Counsel

Michael Sherry to speak at Private Client Conference in conjunction with STEP Liverpool

Complete Counsel barrister Michael Sherry will speak at the Private Client Conference in conjunction with STEP Liverpool – 14th May 2019.

Details of the event can be found at the Liverpool Law Society website where you can also book your seat at the event.

Lorraine Mensah in Liverpool Law Magazine

Complete Counsel barrister Lorraine Mensah was featured in the February 2019 issue of Liverpool Law with her article title ‘Britishness under the radar’.

The decision to Brexit saw our rights as British Citizens expounded as an intrinsic motive to leave. Whatever your views, it appears we all value our ‘Britishness’. In Claudia Font’s article in the December edition of The Liverpool Law, an option for continued smooth movement is to consider residence rights in another EU country.

Click here to read the full article (page 30) along with the rest of this month’s issue.