We have an adversarial system where parties bring issues to the Court to determine, rather than the Court carrying out an investigation of the matter in its entirety.
You can see this reflected within the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 (‘the RTA Protocol’). A self-contained set of rules intended to encourage settlement and if not, narrow as many issues as possible. This is the same for any type of litigation, irrespective of value.
This issue came up during a Stage 3 hearing when there was a disagreement over a payment. As youor certain medical reports in soft tissue injury claims. A GP report costs £180 + VAT, and an orthopedic report costs £420 + VAT. may know, there are set costs f
What happens if the Defendant makes an interim payment that exceeds the fixed cost of the medical report as per the rules?
What was the issue?
As always, the parties were unable to come to an agreement on damages and I was instructed to attend on behalf of the Claimant. Upon damages being assessed, the Judge turned to the issue of costs.
The claimant was involved in a severe road traffic accident that resulted in a fractured ankle. Typically, a fracture in a road traffic accident indicates a significant collision, unless the person is a vulnerable road user. Due to the severity of the injury, the decision was made to skip consulting a GP and directly engage an orthopedic surgeon. That orthopaedic report was £654 inclusive of VAT, far more than the prescribed amount.
There were two issues. Firstly, should the Claimant have obtained a GP report as per para 7.8A(1) of the RTA Protocol (potentially limiting the recovery of costs to £216 inclusive of VAT) and secondly, should the Claimant’s orthopaedic report be limited to £504 inclusive of VAT.
Apart from the court issue fee, the Claimant was asking for £108 for three sets of medical records, which was the correct fee, and £654. The total disbursements claimed at Stage 2, excluding the issue fee, amounted to £762. The Defendant had already paid an interim amount of £732. As a result, the only amount in question was £30.
The rules
The reason the Defendant had to pay an interim payment was due to the fact that para 7.70(4) and 7.71 of the RTA Protocol required the Defendant to do so.
7.70 Except where the claimant is a child the defendant must pay to the claimant—
(1) the final offer of damages made by the defendant in the Court Proceedings Pack (Part A and Part B) Form less any—
(a) deductible amount which is payable to the CRU; and
(b) previous interim payment;
(2) any unpaid Stage 1 fixed costs in Table 10 in Practice Direction 45;
(3) the Stage 2 fixed costs in Table 10 in Practice Direction 45; and
(4) the disbursements in rule 45.58 that have been agreed including any disbursements fixed under rule 45.62(2).
7.71 Where the amount of a disbursement is not agreed the defendant must pay such amount for the disbursement as the defendant considers reasonable.
The Defendant did not dispute the £108 for the medical records and should have paid only £504 for the orthopaedic report.
The Defendant intended to rely on the pre-1st October 2023 Part 45.19(2A) which said ‘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…..(i) Consultant Orthopaedic Surgeon (Inclusive of a review of medical records where applicable) £420 [plus VAT = £504]).
My opponent acknowledged that by getting a GP report, it would have likely led to a referral for the ankle injury to an orthopaedic surgeon. If that had happened, the Defendant would have been responsible for both the GP report and the orthopaedic report. This would have limited the argument for the Claimant to only receive the cost of a GP report (£216). However, my opponent argued that Part 45.19(2A)(b)(i) restricted the amount the Court could award for an orthopaedic report, capping it at £504.
My argument was that the Defendant could only dispute the £30 as a result of paying the interim payment.
Adversarial system
The most recent example of the nature of the adversarial system was in the case of Clements-Siddall v Dunbobbin Hotels Limited [2023] EWCA Civ 1300. This was a sad case where the Claimant was in utero when his mother slipped and fell from the unprotected leading edge of a raised decking area alongside the hotel’s outdoor spa pool while she was pregnant. As a result, she landed on her bump, which led to the Claimant’s sustaining congenital issues.
It was argued that the hotel was at fault because the raised deck was not guarded, leading to the accident. However, the trial Judge found that the mother did not slip where she said she did, relying on the hotel records, which suggest she fell on the steps. The issue was only first raised in the closing submissions of the Defendant.
The Court of Appeal allowed the appeal because the Judge was not permitted to decide where the accident took place. The Defense had already acknowledged the description of the accident location, and during the case summary, the circumstances were agreed upon. The issue at hand was whether there was a breach of duty for not having a guard in the specific area in question.
This was the core of our legal system. Parties presented issues to the Court for adjudication. The Court was not to revisit the issues unless parties applied to retract admissions, which fell under case management perview.
My submission at the stage 3
Reverting to the hearing, my submission to the Judge was that para 7.70(4) and para 7.71 of the RTA Protocol was clear that the Defendant paid what it thought to be reasonable. It did not dispute the £108 for medical records, so it had offered £624 for the orthopaedic report even though the fixed fee was £504.
I submitted it could not ask the Court to award less. The Court Proceedings Pack made it clear they had paid that amount, so the Court could only adjudicate on the final £30 that remained in dispute. I did not refer to Clements-Siddal, but merely described the adversarial system.
Judgment
The Judge made it clear that he saw a conflict between CPR 45, which fixed the disbursement, and para 7.70(4) and 7.71, which required the Defendant to pay what it thought was reasonable.
Further, we have an adversarial system and when the Defendant had agreed to pay £624, even though this exceeded the £504 fixed fee, the Court could not go behind this. However, it was evident that as it exceeded the £504, the Court could easily refuse the additional £30 sought by the Claimant.
Information
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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.