It is not uncommon for a Claimant to submit their Stage 2 Settlement Pack with their initial offer and the Defendant objects to a head of loss or is unwilling to make a reasonable offer because it is unsupported (or lacks sufficient evidence).
It is commonly argued at Stage 3 hearings that the Court must take a ‘rough and ready’ approach because the purpose of the hearings and the MOJ portal were to streamline proceedings and therefore the evidence will not be considered in the same way as it would at a final hearing in Part 7 proceedings.
This does not, however, negate the Claimant’s burden to prove matters. For example, if one is claiming loss of earnings and the relevant wage information is missing, this could be fatal if the matter comes before a District Judge at a stage 3 hearing.
Claimant Solicitors ought to make sure that all evidence is included in the Stage 2 Settlement Pack. However, all is not lost in my view. It is not uncommon for a Claimant to upload subsequent evidence onto the MOJ portal during the ‘consideration period’. I have yet to find a Defendant who objects to such evidence being relied on and I think the reason for that is clear.
Using the Road Traffic Accident Pre-Action Protocol as the example, paragraph 7.30 says the Stage 2 Settlement Pack must include ‘evidence of pecuniary losses’. The protocol rules then say that if during the ‘consideration period’ (as per paragraph 7.32) the parties cannot agree heads of loss, the Claimant must, in accordance with paragraph 7.64(2):-
| The claimant must send to the defendant the Court Proceedings Pack (Part A and Part B) Form which must contain—(a) in Part A, the final schedule of the claimant’s losses and the defendant’s responses comprising only the figures specified in subparagraphs (1) and (2) above, together with supporting comments and evidence from both parties on any disputed heads of damage; and(b) in Part B, the final offer and counter offer from the Stage 2 Settlement Pack Form and, where relevant, the offer and any final counter offer made under paragraph 7.53. |
There appears to be nothing within the protocol that prohibits a party from uploading further evidence during the consideration period. Going further, there are grounds to argue that until the Court Proceedings Pack is sent to the Defendant, there is nothing within the rules stopping the Claimant from sending further evidence. The protocol has been described as a self-contained set of rules which are prescriptive. If it doesn’t say something, then it was not intended. If it says something explicitly, then it is intended.
Of course, the real issue is that once the consideration period has ended, a party cannot upload any further evidence onto the MOJ Portal. This would give the Defendant argument that the consideration period is the only time evidence can be relied on.
In contrast, there are some things within the rules that expressly can and cannot happen. For example, para 7.49 says that “comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form“. This means that once the ‘consideration period’ has ended, the Defendant and Claimant cannot raise further arguments to put into the comments section of the Court proceedings pack.
Another example is that paragraph 7.48(b) states that the Part B must be the final offer and counter offer from Stage 2. Therefore, although there is absolutely nothing stopping the parties from negotiating a settlement after the ‘consideration period’ has ended, any subsequent offers made do not make it into the Court Proceedings Pack (which comes back to the situation where Defendants make offers after the ‘consideration period’ has ended and try to rely on the same at the Stage 3 hearing.
What paragraph 7.64(a) does not say is that only evidence submitted during stage 2 is to be relied on.
This is a relatively untested argument and is very much an argument in principle. Most cases will be clear cut, evidence was submitted at stage 2 and can be relied on at the Stage 3 hearing or they have not.
So what happens if you are heading to a Stage 3 hearing and then you realise that evidence crucial to proving a loss was not included in the stage 2 settlement pack and had not been served on the Defendant?
There is a potential saving grace in Practice Direction 49F (which has since replaced the PD8B):-
7.1 The parties may not rely upon evidence unless—
(1) it has been served in accordance with paragraph 6.5;
(2) it has been filed in accordance with paragraph 8.2 and 11.3: or
(3) (where the court considers that it cannot properly determine the claim without it), the court orders otherwise and gives directions.
One could argue that if the Judge does not (for example) have the wage slips to calculate the loss of earnings, then the Judge cannot properly determine the claim without it. It can also be said that it doesn’t trigger 7.2, which says:-
Where the court considers that—
(1) further evidence must be provided by any party; and
(2) the claim is not suitable to continue under the Stage 3 Procedure,
the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.
That would be a terrible outcome for Claimants because if the matter gets allocated to Part 7 and the reason was the lack of evidence on part of the Claimant, the cost consequences would be disastrous. Triggering PD 49F para 7.1(3) does not automatically lead to the claim being unsuitable for stage 3 and it can remain in stage 3.
This is, of course, not the optimal approach because the Court will recognise the overriding purpose of MOJ portal and Stage 2 and 3 proceedings is to streamline the case. Those who undertake MOJ cases will know that Wickes Building Supplies Ltd v Blair [2019] EWCA Civ 1934 concluded that only the evidence that was exchanged at Stage 2 should be relied on at Stage 3. It was stated however at paragraph 24 that “If the court considered that further evidence was necessary, it was open to the court under paragraph 7.1(3) to make appropriate directions.” Later at paragraph 33 of the Judgment para 7.1(3) was described as a discretion open to the Court to exercise.
Should your find yourself in a position where evidence was omitted at stage 2, disclose the evidence immediately and instruct your advocate to argue that the Court can and should exercise its discretion under para 7.1(3) of PD49F because it would be unable to determine the claim without the evidence. Further if the Defendant has been furnished with the evidence with ample time to consider the same then the prejudice is limited as the Defendant could have attempted to settle before proceeding to stage 3.
I would be more than happy for any firms to contact me if they wish to discuss this tactic further and how to mitigate any evidential issues.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.