Whiplash claims can often be simple, but complexity arises in cases involving multiple injuries and conflicting reports. This complexity can complicate the claims process significantly. Additionally, low-value road traffic accident claims tend to be inefficient to manage, especially when they fall under the small claim claims track.
Fee earners often juggle multiple tasks in their efforts to progress matters efficiently. However, certain essential actions must be prioritised to optimise both success and potential damages in their work.
Clear instructions from the outset
Quite often, whether it is at Stage 3 hearings, OIC quantum hearings or Fast Track trials, the CNF is relied on to show the inconsistency between what injuries the Claimant has told the Defendant they sustained and the medical evidence.
There are various authorities, such as Richards & Another v Morris [2018] EWHC 1289 (QB), which highlights the seriousness of the CNF endorsed with a Statement of Truth. As we know, the legal representatives usually sign the CNF when it is submitted on the MOJ or OIC portal. Practice Direction 22 is very clear:-
3.7 Where a legal representative has signed a statement of truth, their signature will be taken by the court as their statement that:
(1) the client on whose behalf they have signed had authorised them to do so,
(2) before signing they had explained to the client (through an interpreter where necessary) that in signing the statement of truth they would be confirming the client’s belief that the facts stated in the document were true, and
(3) before signing they had informed the client of the possible consequences to the client if it should later appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
Incorrect injuries can and will be used against the Claimant. In Stage 3 and OIC disposal hearings, where there is no evidence, the Court will quite often accept that if an injury wasn’t reported in the CNF then it won’t be considered, even if reported in the medical reports (the exception might be where medical records show that the injuries were report contemporneously to physcians prior to the CNF).
Some solicitors have argued that in OIC PI claims, according to paragraph 5.12(2) of the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (referred to as “the RTA Small Claims Protocol”), the Claimant has the opportunity to provide additional details about their injuries during the medical examination. They are only required to include the best information they can about their injuries.
However, while some Judges may accept that there can be some flexibility with the information provided, the purpose of this rule was to clarify for litigants in person (LIPs), for whom the protocol was specifically drafted, that they can elaborate on their injuries to the medical experts. It was not intended to serve as a way to correct any omissions from the CNF.
If matters get allocated to the Fast Track, then there is the risk inconsistencies will be relied on to challenge credibility or worse, alleged fundamental dishonesty.
- Get clear instructions
- Send the draft CNF to the Claimant to sign (even if the fee earner will sign the copy sent to the Defendant.
- Make it clear to the Claimant that any omissions will most likely impact any ability to claim for injuries and can impact credibility
Medical records check?
It is not typical to obtain medical records for an initial medical evaluation, except in cases involving orthopaedic assessments, particularly for non-soft tissue injury road traffic accident claims.
A common issue arises when an initial report suggests consulting a different expert, leading to the acquisition of medical records that might be reviewed by this new expert. These records may contradict the initial findings or, in some instances, reveal pre-existing conditions that should have been disclosed earlier.
While the Claimant might not intentionally withhold this information, possibly forgetting its relevance, it can create significant challenges, especially in personal injury claims. The sudden emergence of a pre-existing condition casts doubt on the Claimant’s credibility and may lead to misinterpretations of medical reports or assumptions made in the absence of this critical health history.
Obtaining medical records at the start can help avoid potential issues later on. It is not necessary to use a medical agency for this process, as most GP surgeries will release a reasonable amount of medical records without charge. However, it’s important to note that acquiring these records may take about a month. If you need updated records in the future, there is a possibility that the GP surgery might impose a fee for further records, even though ideally, you should only be requesting the records from the last date you received them to the present.
The timing of the initial report
In my experience at stage 3 hearings, I often emphasise that medical examinations are conducted soon after an accident, sometimes within four weeks. While I can’t dispute the injury’s duration, these early assessments can cast doubt on the true severity of the injury. For instance, a claimant may present severe symptoms shortly after the accident but might experience significant recovery later, resulting in milder, intermittent symptoms over time. As the expert sees the claimant so early in the prognosis. There is insufficient evidence before the court to say otherwise.
Many solicitors I speak to argue that clients may lose patience if they don’t see prompt progress, leading them to consider other options. There’s also a concern that delays could make insurers question the legitimacy of the claim, suggesting it isn’t genuine due to the time elapsed since the accident. From my experience, waiting more than two to three months for an initial report is usually unnecessary, whereas a month may be too soon for the reasons mentioned.
Address special damages in the insturction letter to the expert
werfsdfsdfsdCertain special damages can be effectively addressed through the standard points raised by the medical expert in their report. However, there may be financial losses that need to be justified but are not mentioned to the expert prior to the examination and preparation of the medical report. This oversight can lead to complications, especially if medical evidence is required to support a loss. For example, if a particular item is purchased to assist in recovery or pain management, a supplementary report may be necessary to address this issue. However, this process could put the claimant at risk of not being able to recover the additional disbursement associated with the addendum.
While it is not always possible to identify certain losses before the examination, it is generally expected that claimants should indicate any anticipated financial losses. These should be discussed during preliminary conversations with the claimant and specifically addressed by the expert. If any relevant points are overlooked in the instructions, you have sufficient grounds to request an amendment to the report without incurring additional costs. This does not need to be a time-consuming task. Special damages should be identified from the outset to assess whether the financial value of the claim warrants a different response protocol.
Initial report check
Most issues with medical evidence arise when the medical report is not properly reviewed by the client or the fee earner. While clients are responsible for checking the report, their varying abilities may lead to missed issues. If the fee earner thoroughly reviews the report and summarises it for the client, this can address concerns more effectively. This practice should be standard, as it ensures the initial report is compared to the CNF and instructions, improving clarity and understanding.
Claimant representatives would benefit significantly from ensuring that their client’s medical evidence is well-organised. The more consistent the evidence is, the more likely it will lead to a better offer. If a compromise cannot be reached, it will also result in a stronger position at any final hearing. Inconsistencies between the initial medical report and subsequent reports will rarely favour the claimant. Typically, if an initial report omits certain injuries that are included in later assessments, or if the first report indicates a recovery while the second suggests ongoing symptoms, the court will tend to favour the initial report.
Address ambiguity
Ambiguity in medical reports often leads to misunderstandings, as experts may not have the opportunity to clarify their statements. It is crucial for fee earners to read these reports from a layperson’s perspective to ensure the meaning is clear and accurately conveys what the expert intends. While experts may be trained to write medico-legal reports, they are not legal professionals and may not fully grasp how their words will be interpreted by a judge. Effective communication requires using clear and easily understandable language to avoid confusion.
“In my expert opinion, this is a non-whiplash injury and is excluded under s1(3)”
Defendants increasingly challenge whether injuries are excluded from the whiplash tariff under the Civil Liability Act 2018. Judges emphasise often that it’s the court’s role, not the experts’, to determine these exclusions. Medical experts often use standardised phrases, leaning towards legal conclusions rather than assisting the court in understanding the specifics. While certain injuries, like those to the foot or knee, are unlikely to fall under the whiplash tariff, injuries to the upper arms or hips can be connected or associated with a whiplash injury and therefore would be included.
Some medical experts may claim that an injury is excluded if it results from an external event, such as contact with the interior of a vehicle. However, this is not a formal definition under the relevant act. It is important to note that if a soft tissue injury is associated with another soft tissue injury in the neck, back, or shoulder (specifically involving the muscles, tendons, or ligaments connected to these areas) it can be classified within the whiplash regime.
The medical expert’s role is to clarify, from a medical standpoint, why a specific injury is not linked to the neck, back, or shoulder due to the involvement of a muscle, tendon, or ligament. This explanation would also help eliminate any ambiguity and decrease the likelihood of proceeding to a final hearing, which is particularly important in the context of an OIC claim.
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.