It is not uncommon for clients to pull out evidence from their magicians’ hat that supports a head of loss in MOJ proceedings. The usual issue is that this happens after the end of the consideration period and the end of Stage 2.
The general position is that no new evidence can be adduced after Stage 2. It is not, by any means, a done deal. However it is an incredible high threshold. The purpose of Stage 3 is that the parties have done their best to try and settle on the evidence and now they want the Court to determine damages.
Is there the possibility to have pocket aces that will win the pot? Can you rely on them?
Stage 2 rules
The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 is a self contained set of rules intended to dispose of non-whiplash tariff and infant whiplash tariff RTA claims without expensive litigation.
If the parties are unable to settle all heads of loss claimed by the Claimant then the Claimant must send the Defendant a Court Proceedings Pack (‘CPP’). This will include the completed Part A and B and cannot include any comments that raises new points or issues which were not part of the Stage 2 Consideration period (para 7.64 to 7.69).
Then the claim is subject to the rules founds within Practice Direction 49F (formally known as Practice Direction 8B).
What are the rules of evidence in Practice Direction 49F?
The starting point is what the claimant must file with the Claim Form:-
6.1 The claimant must file with the claim form—
(1) the Court Proceedings Pack (Part A) Form;
(2) the Court Proceedings Pack (Part B) Form (the claimant and defendant’s final offers) in a sealed envelope. (This provision does not apply where the claimant is a child and the application is for a settlement hearing);
(3) copies of medical reports;
(4) evidence of special damages; and
(5) evidence of disbursements (for example the cost of any medical report) in accordance with rule 45.19(2).
The Protocol dictated that the Court Proceedings Pack could not contain anything other than the comments and supporting evidence from both parties. So to suggest that this rule was intended to afford an opportunity to adduce further evidence is unlikely to hold weight.
The next relevant rule is para 7.1 of the 49F:-
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.
Para 6.5 refers to serving the claim form on the Defendant, para 8.2 is the Defendant’s requirement to file an acknowledgment of service (failure of which will prevent the Defendant from being able to rely on its evidence and make submissions at the Stage 3 hearing) and para 11.3 is the only exception which is for the Defendant to include an updated CRU certificate where there are DWP deductibles.
Wickes Building Supplies Limited v Blair
The Court of Appeal considered additional evidence being adduced after Stage 2 in Wickes Building Supplies Ltd v Blair [2019] EWCA Civ 1934. After Stage 2 a statement was served and the Claimant attempted to rely on the statement at the Stage 3 hearing.
The issue for some reason, which the Claimant proceeded with, was that under para 9.1, the claim should have been dismissed, the Claimant allowed to issue Part 7 but potentially restricted to portal costs. A Circuit Judge allowed this approach upon appeal but overturned by the Court of Appeal on the Defendant’s appeal.
It was the Defendant’s view that objecting to evidence did not automatically reject the process under para 9.1. In the same breath, the purpose of the MOJ process was to deal with matters if possible within Stage 3 disposal. There is discretion under 7.1(3) to allow further evidence and if adducing new evidence automatically caused the claim to exit the process then, as the Defendant submitted, it would give the Claimant unlimited power to exit the MOJ process by adding evidence it did not have at Stage 2.
Why a Claimant would choose to limit their costs recovery and incur significantly more costs issuing Part 7 is beyond me save for where the missing evidence was so crucial that the award would outweigh the cost. Nevertheless, it was clear that evidence adduced after Stage 2 was not admissible.
So the next question is what is meant by para 7.1(3)?
The exception to the rule
So the pocket aces is the para 7.1(3) but what is it? The rule says ‘where the court considers that it cannot properly determine the claim without it‘ and without any guidance or authority is unclear. What we know from Wickes is that the process was intended to be used and give finality. The following paragraphs refer to para 7.1(3).
- In those circumstances, the issue fell to be considered by the district judge under paragraph 7 of the Practice Direction. Under that paragraph, the court at the hearing must disregard any evidence not served in accordance with the Protocol and the Practice Direction unless the court considers that it cannot properly determine the claim without it. If it does conclude that the proper determination of the claimant requires the evidence to be admitted, the court may allow the party to rely on the evidence and, if so, will give appropriate directions under paragraph 7.1(3). In this case, the district judge simply concluded that the statement should be disregarded and proceeded to make a decision on the level of damages. In taking that course, he was acting in accordance with the terms of the Practice Direction and the aims of the Protocol.
- I agree with Ms Cullen’s submission that, if Judge Hughes’ interpretation of paragraph 9.1 was correct, it would mean that, whenever a defendant objected to the late filing of evidence, the claim would be removed automatically from the Stage 3 Procedure. The court would essentially be deprived of any discretion to deal with the late service of evidence as it considers appropriate. Such a consequence would be contrary to the aims set out in paragraph 3 of the Protocol and may unfairly disadvantage the defendant. By contrast under paragraph 7.1, whilst the default position is that the evidence may not be relied upon, the court has a discretion to order otherwise under 7.1(3) if it considers that it cannot properly determine the claim without it.
There is no guidance as to what that discretion is. What amounts to evidence so essential that the claim cannot be considered and outweighs the prejudice the Defendant suffers due to late evidence?
I can imagine a situation where for reasons unknown the first or key medical report was disclosed in the portal but due to an error, was omitted from the CPP when sent to the Court with the Claim Form.
The White Book’s guidance doesn’t add much either as to what would trigger para 7.1(3).
Running the risk of having the claim dismissed
There is a balancing act. The Claimant must either accept that there is evidence that would hve support a loss but does not exist, or they go for broke. This is because the Defendant can elect to have the claim dismissed without contest because para 9.1 states the court will dismiss the claim.
The Claimant can issue Part 7, subject to any limitation defence, but will most likely be stuck with Stage 1 and 2 costs.
As per Wickes it is optional to the Defendant, they can contest evidence without electing a dismissal. It would be an oddity and would almost encourage Defendants to not contest new evidence.
It is therefore really important that all evidence is collated from the Claimant and other sources before proceeding with the submission of the Stage 2 Settlement Pack.
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.