The fantastic opportunity of being bale to work for both Claimants and Defendants is that it enriches my ability to work for either. Whilst I mostly get Claimant work, I can be a great Defendant advocate when needed.
Some cases, depending on how the Defence is pleaded, means I can only challenge the Claimant’s case which is easier said than done. In Stage 3 however, you can can only submit the Claimant has failed to prove their case or argue the quantification of damages isn’t wha the Claimant says it is.
Of course the nature of Stage 3 has a ‘rough and ready’ approach but the fundamentals of evidence still apply. In many cases I will act for a Claimant where there are some obvious gaps in the evidence and it is awful to try and make submissions where there are glaring issues. In some cases I can get away with it, others the Judge is quite quick to identify the issues and remind themselves that the burden is on the evidence.
I had quite the interesting case the other day where the question of ensuring evidence substantiates damages is still over looked by many fee earners.
The missing injury
The Claimant had four reports from two medical experts. The first was a GP report and the remaining were from an Orthopaedic surgeon.
The GP report says that the Claimant had lower back injury and shock/shakiness for two days. The examination was two months and seventeen days post accident At ten months post accident, the orthopaedic was told about shoulder/scapula pain. The orthopaedic the requested an MRI and his reviewed determined there was an impingement and as she was asymptomatic before the accident the symptoms must be caused by the accident. A further report suggested cortisone injections.
Whilst the Defendant had made offers to settle the claim including the shoulder, I was instructed to reduce the award for PSLA (and other heads of loss) to the best of my ability. Many of the financial losses (and disbursements could be linked to the shoulder injury.
PSLA settled
I spoke to Counsel for the Claimant before the hearing started and he confirmed that the Claimant had accepted the Defendant’s lower PSLA offer, as well as accepted one other special damage and withdrew another. Some very good concessions which I presumed were a recommendation by Counsel after receiving the papers.
I explained the remaining heads of loss (an initial consultation allegedly to do with cortisone injections and physiotherapy) were being challenged on the basis (but not limited to) that there was an evidential gap where the GP report made no mention of shoulder injuries.
Submissions
When it came to making my submission on the point I argued to the Judge that there was clearly some sort of problem because there was an impingement but if the Claimant had been suffering immediately after the accident then it would have been present and mentioned in the GP report.
The Judge was very skeptical about how I could challenge this when it was a Stage 3 hearing and intended to have limited challenge. I submitted that the Claimant was to prove her case. She needed to demonstrate causation. The Court could reject an expert’s opinion either by setting out clear reasons why it ought to or if the factual evidence relied upon was incorrect. I submitted the absence of a shoulder injury in the report was crucial because the Orthopaedic expert was under the impression that the Claimant had been suffering with shoulder pain immediately after the accident and this was clearly not the case.
I also reminded the Judge that the GP report was approved by the Claimant and relied upon as such. She had the opportunity to revert to he GP expert and said “you’ve not included my shoulder injury which I mentioned”.
The Claimant did not have any additional evidence such as witness statement or medical records (because she sought no medical attendance) and therefore the Claimant failed to discharge the evidential burden because of the absence. The Judge was still of the view I needed the Claimant cross examined to make the submission. I disagreed because if the Claimant had filed a witness statement to say “I had shoulder pain in the first three months despite the absence of the same in the GP report” then it would have to be accepted as correct because the Defendant did not intend to challenge it (by exiting the MOJ process and compelling the Claimant to issue Part 7 proceedings).
My opponent’s argument was that the GP expert was less qualified and because of the limited time and expenditure on GP reports it was going to be less accurate and that because the Orthopaedic was of the view that the pain was caused by the accident, causation had been established. My opponent also said there was no physical examination with the GP. (Personally, I would have argued that the Orthopaedic had the GP report and whilst he did not expressly refer to reading the contents it was reasonable for the Court to have considered the GP report and the content did not alter his opinion. Granted that my opponent only found out about my argument in the half an hour before being called in so may not have had time to consider the evidence in full whilst taking instructions on other points).
The Judge was of the opinion that the orthopaedic found an impingement, he had physically examined the Claimant and reviewed the MRI. His view was that the impingement was caused by the accident and whilst it remained in Stage 3 we could not challenge this.
The remaining special damages were reduced for other reasons.
Discussion
As above I did have some weaknesses in my position. There was objective evidence of a shoulder problem that the orthopaedic was able to rely on and he had the GP report.
However, it seemed that the Judge did not believe that I could appropriately challenge the conclusion of one expert in the absence of the reporting of an injury to another, initial/first expert. I was quite taken back because not only have I done this before, I’ve also faced the same issue when acting for the Claimant. In his decision the Judge said that Stage 3 did not have evidence such as witness statements. This is of course incorrect because of what it says in the RTA Low Value Protocol:-
Witness statements
7.11 In most cases, witness statements, whether from the claimant or otherwise, will not be, required. One or more statements may, however, be provided where reasonably required to value the claim.
Whilst it could be argued a statement from the Claimant plugging in the gap in a medical report is not reasonably required to value the claim, one could also argue that the purpose of the witness statement is to help causation on an injury which in turn helps to value the claim. I have had many cases where evidence (witness statement or otherwise) has been used to fill in the gap and it was in my view wrong for the Judge to not accept the criticism.
I had said to the Judge that the evidence of an impingement proved an injury was sustained but if there were no symptoms at three months (which could be inferred from the lack of mention of the same in the GP report) then the impingement was caused by something unrelated. I think it would have been fair that the Judge found the evidence of the injury by way of the MRI to be cogent that a shoulder injury was caused by the accident (plus the orthopaedic had the GP report), but to ought right suggest the Defendant could not submit there evidential gap meant the Claimant had not prover her case for a shoulder injury was wrong.
What was also important was the Judge was not necessarily put off by the fact quantum was agreed. There was no reason for the Defendant to not challenge the shoulder injury even though quantum had been agreed, as parties could settle by any terms they wished.
Whilst this particular Judge decided not to accept my submissions, I would strongly recommend that those who deal with MOJ potal matters still check the evidence is correct and if there are issues, obtain evidence to deal with the evidential gaps.
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.