I love it when unexpected submissions are presented during hearings that I have never heard before. It really forces me to think on my feet. Sometimes I come up with ideas out of thin air, while other times I resort to using tried and tested methods. Occasionally, I am not even sure where to begin.
I attended a stage 3 hearing where a unique argument was presented to challenge the medical expert fee. The argument was a connection between the expert and the treatment provider recommended by the expert. Sometimes, even if an argument is unsuccessful, it can still be interesting to consider and write about (which is fortuitous because I can get writer’s block).
The CPR provision
My opponent to myself and the Judge to the relevant provision within CPR. Below is the post 1st October 2023 version.
45.19(2B)
Save in exceptional circumstances, no fee may be allowed for the cost
of obtaining a report to which paragraph (2A) applies where the medical expert—
(a) has provided treatment to the claimant;
(b) is associated with any person who has provided treatment; or
(c) proposes or recommends treatment that they or an associate thenprovide.
However, (2A) says the following:-
(2A) In a soft tissue injury claim, or a claim which consists of, or includes, a claim for a whiplash injury, to which the RTA Protocol applies, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—
It then proceeds to list the fixed costs reports (i.e GP, orthopaedic, A&E, Physiotherapist, records, addendums and Part 35 questions). One could infer that essentially (2B) can only apply to fixed costs reports.
This is different from the old Part 45 (the one that is online for PI claims where the cause of action is from the 1st October 2023). In that version (CPR 45.62) the wording is different:-
45.62.—(1) This rule applies—
(a)to a soft tissue injury claim; or
(b)a claim which consists of, or includes, a claim for a whiplash injury,
which arises from a road traffic accident.
and
(3) Save in exceptional circumstances, no fee may be allowed for the cost of obtaining a report to which paragraph (1) applies where the medical expert—
(a)has provided treatment to the claimant;
(b)is associated with any person who has provided treatment; or
(c)proposes or recommends treatment that they or an associate then provide.
It is uncertain whether it was intended, but the rule that applies to situations where a fee cannot be allowed is not restricted to fixed cost reports. Instead, it applies to any report that includes a claim for soft tissue or whiplash from a road traffic accident.
This would mean any type of medical expert and associated treatment link could render the invoice unrecoverable. Unhelpful (but expectedly) the white book has no commentary on the subject.
Why was it being argued?
My opponent had noted that the treatment was provided at Nuffield Health Hospital (arranged by 3D Rehabilitation) and the expert who recommended the treatment examined the Claimant at a Nuffield Health Hospital. Neither myself nor my opponent could actually identify who carried out the treatment.
My opponent was arguing there was enough evidence to link the provider of treatment with the expert. Those in the PI industry will of course be familiar with Defendants trying to find innovative ways to reduce the liability.
What happened?
The argument I gave on the spot was that there isn’t enough evidence to prove a connection. My opponent accepted that the expert’s main practising address was not a Nuffield Hospital. I submitted that the address where the examination took place was insufficient to draw a connection between the expert and the person who conducted the steroid injection.
As part of the preparation for steroid injection, an MRI report from Nuffield Hospital was required. However, the document only had the name of the radiologist on it, who was unlikely to have conducted the treatment.
My other off-the-cuff argument was that if the Defendant was alleging that there was a connection, then the burden was on the Defendant to establish the link, not for the Claimant to dispute it.
The Judge was satisfied that there was insufficient evidence to identify the individual who carried out the steroid injection, let alone to demonstrate a link between the Part 35 expert and the provider of treatment. The Judge allowed the cost of the expert’s report in full.
Consideration
After the hearing, I considered whether it was correct for me to argue that the Defendant had to establish a link between the treatment provider and the Part 35 expert.
In determining which party bears the burden of proof, substance rather than form should be considered. In any case, if a party makes an allegation that is essential to their argument, they must prove it regardless of whether it is positive or negative.
It is reasonable to assume that the responsibility of proving the association caveat lies with the Defendant. If the Claimant can prove that the expert’s fee was both reasonably incurred and proportionate, then it is up to the Defendant to invoke any caveats that would prevent the Claimant from recovering the amount.
How to prove that a link is problematic? This rule is applicable only to soft tissue injury RTA cases (whiplash), where the very nature of the process limits costs. Could a Defendant really justify the time and expense of investigating a possible link? Maybe, if the disbursement were of such a high value that it warranted the investigation. There would also need to be some potential evidence of a link to even start any sort of consideration.
It was a fascinating argument to be raised, most certainly not one I would have thought of. I do not expect it to succeed (without sufficient evidence), and it will be rarer than 45.29J applications. I would love to see the argument developed.
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.