I was acting for a Defendant at a Stage 3 this week where the Claimant was relying on one medical report. The report was a medico-approved physiotherapist (which is suitable for low value RTA cases) with multiple single-site symptoms (neck, back, shoulders, headaches) and had a maximum prognosis of 10-12 months.
The Stage 2 consideration period took place at a time when the 16th edition of the JC Guidelines was in place. Upon the publication of the 17th edition, the 22% increase with inflation was giving Claimants a significantly increase chance of beating their Part B offers (which were characertisically high when consider under the 16th editions figures).
So Claimants are now have an advantage where their negotiations took place under the 16th Edition. That depends, of course, on the evidence coming to proof. That’s the difficulty that Claimant experienced when they tried to rely on a medical report that was prepared following an examination only 17 days post-accident.
Consideration of early reports by the Judiciary
There is no rule within the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents as to when a medical report should be obtained. I’ve previously acted for Claimants, where a report is obtained following an examination about one calendar month after the accident.
In those situations, the Judge has been highly critical of the Claimant. There were also cases where additional reports were necessary, and I argued that, ultimately, it did not matter because the Claimant would have required a report from a different expert anyway. However, I had to accept this was a hindsight point.
In cases where the prognosis period is very short (around three months), and the report is obtained in one month, it is not considered too bad because the expert is reviewing the Claimant at 1/3 of the prognosis period. Again, that’s fine with hindsight.
What happened to the above Claimant?
As the Defendant I was able to argue that the expert could not have been in a good position to assess the progress of the recovery at 17 days post-accident. I used the anaology of a jigsaw puzzle. If you provide a person with a 2000-piece jigsaw puzzle and give them 5-piece, they are unlikely to be able to put them down on a table and see that it is a picture of a donkey. Given them 100 pieces however, they may have a better chance of determining what the image is.
At a Stage 3 hearing (as per Griffiths v TUI [2023] UKSC 48), I was unable to challenge the report or the findings, but I could use the above to argue why the Court should be less favourable in assessing damages. I reminded the Judge that she had a generous ambit and that the brackets were ‘guidelines and not tramlines’.
The Claimant had sought £4,000 in the Stage 2 consideration period, which was at the very top of the 16th JC Guidelines. With the new 17th edition figure, that figure would be closer to £5,000.
The Judge accepted my submissions and was critical of the limited information. She accepted that the Claimant could provide further evidence, such as a short statement, to explain how he was at a later stage of the prognosis period, and as it was for the Claimant to prove his case, she would bear this in mind when assessing damages.
The new JC bracket was £2,990 to £5,310. As the Defendant, I reduced the PSLA valuation to £3,500. This was the Defendant’s Part A offer increased with inflation (which was my secondary position). For a 10-12 month whiplash injury under the common law assessment, it was very low.
What could Claimant lawyers do to prevent this?
It is really important to acknowledge that the process is streamlined with limited costs. Cash flow is vital and the need to get cases moving forward is high. No dispute about that. Further, Claimants would potentially disappear if they feel no progress is happening with their claim. Whilst a CFA is a binding agreement, firms would feel that it is uneconomical to pursue Claimants who move to another firm, and the preservation of the lien may not adduce much either.
However, many firms rely on success fees to make these cases profitable. It is vital to maximise damages so that, in turn, the success fee is increased. The best thing I can suggest is to delay an examination until at least one-month post-accident, or as much as possible. Explain to the client the benefits and the risks of having an early assessment.
I do not think it is appropriate for the Court to penalise disbursements due to an early report. The first report is needed (reasonable) and is fixed at £216 inc VAT (proportionate) and to refuse this must be an appealable point. Fortunately, it has not happened to me when I have acted for Claimants in this situation.
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.