The Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (‘The RTA SC Protocol’) and Practice Direction 27B (‘PD27B’) are the rules that govern low value whiplash claims which as subject to the Small Claims Track (quite often referred to as OIC, which is the acronym for the Official Injury Claims portal).
Like its elder siblings, the RTA SC Protocol is a self-contained, codified set of rules intended to give certainty to parties. The prescriptive language is clear when steps must be taken or are optional, and the parties may choose to do so.
However, unlike the other low-value personal injury protocols, there is some additional scope for further evidence to be obtained and relied upon when it comes to determining issues at a hearing.
I recently attended a hearing where this was put to the test.
The issue
In this case, liability was denied by the Defendant insurer (and as per the RTA SC Protocol, the matter would proceed to a liability-only determination hearing under PD27B). The Defendant insurer put forward an email ‘witness statement’ which had a statement of truth from an alleged independent witness.
Approximately a year later, the list of documents for the Court was created and the Court Pack was sent to the Defendant insurer. The Claim Form was eventually issued and served. The Defendant insurer then sought permission (in their acknowledgement of service) to obtain witness statements from the driver and a better witness statement from the independent.
A notice of hearing was served on the parties around the 19th May 2025, with the hearing listed for the 30th June 2025. On the 19th June 2025 (a month later and 11 days before the liability hearing) an application was made by the Defendant insurer for permission on witness statements that were annexed to the application.
The Claimant resisted the application. I was instructed to object to the application, which was being heard before the liability hearing.
The Defendant’s argument
The Defendant Solicitors stated in their application that they were instructed to witness statements on the OIC portal, but they had not received copies of them. It then transpired that the defendant insurer did not obtain a statement from the driver and did not seek to obtain a more substantive statement from the independent witness.
They argued they sought permission to rely on additional evidence per PD27B para 2.11. Without permission or reasons for refusal, they decided to apply after obtaining statements. They claimed lack of a statement from the driver prejudiced them, and the witness statement, though endorsed with a statement of truth, was improperly formatted and missing expected details.
They relied heavily on the overriding objective and sought permission to rely on the two statements.
My argument
I had set out various rules form the RTA SC Protocol which I relied on:-
Para 6.2 – The compensator must respond to the claimant about liability within 30 days after the claim is accepted on the Portal
Para 6.6 – (2) Unless the compensator makes an admission of liability in full, the Compensator’s Response on liability must also set out the defendant’s version of events and provide any evidence in support.
Para 6.17 – (1) Paragraph 6.6 provides that unless the compensator makes an admission of liability in full, their response on liability must set out the defendant’s version of events and provide any information in support.
(2) The compensator may upload photographs, sketch plans, witness statements, dashcam or other video clips or other documents or data to the Portal in support of their response on liability.
(3) Uploading under paragraph (2) can be done at any time up to the point where the compensator responds on the contents of the Court Pack created by the claimant under section 12. However, the parties should normally allow at least 10 days for new evidence to be considered before proceedings are started.
(4) The information uploaded under paragraph (2) will be used by the court to determine liability, so it is important that the compensator uploads any evidence on which they want to rely.
Para 6.19 (1) A witness summary may be used in place of the defendant’s version of events in the response, where the compensator has been unable for good reason to obtain a signed version of events from the defendant within the 30 day period for response.
(2) A witness summary is a summary of—
(a) the evidence, if known, which would otherwise be included in the defendant’s version of events; or
(b) if the evidence is not known, the matters about which the compensator wishes to question the defendant.
(3) The compensator must state when using a witness summary the reason why they have been unable to obtain a signed version of events from the defendant.
(4) In these circumstances only, the compensator must sign the statement of truth in the response in support of the matters stated above. The statement of truth must be signed by the person at the compensator with knowledge of the matters stated.
(5) Where the compensator uses a witness summary as provided in paragraph (a), they should still obtain the defendant’s version of events, supported by a statement of truth signed by the defendant and upload this onto the Portal as soon as possible. This step must be taken by the time the compensator responds on the contents of the Court Pack created by the claimant under section 12, failing which the defendant’s evidence will not be included in the Court Pack.
I had submitted that the rules were clear, stating that the Defendant insurer was obligated to provide its evidence in support of its denial and must do so before responding to the Court Pack.
I said this was in keeping with other protocols and the use of compulsory language such as ‘must’.
I submitted that the Defendant had denied and relied on the independent witness’ emailed statement, endorsed with a statement of truth. It had around eleven months to obtain witness statements and chose not to.
I then addressed the issue regarding PD27B para 2.11:-
2.11
(1) Where the defendant seeks to rely on evidence not contained in the relevant Court Pack the defendant must send the evidence to the court with form RTAASL or explain why this is not possible and must include the following in form RTAASL—
(a) a summary and description of the evidence the defendant would like to rely on; and
(b) the reasons why it was not produced as part of the steps taken under the RTA Small Claims Protocol.
I reminded the Judge that the Defendant Solicitors’ application witness statement did not explain why the Defendant did not obtain the witness statements, merely explaining why they wanted them.
I further argued that this was a streamlined system, which was a ‘stack them high, sell them cheap’ system that the insurance industry lobbied for to keep costs down. This was not a new procedure; it was nearly four years old at the time of the hearing and older than three years at the time of the breach. I argued that the streamlined nature meant the Defendant had failed to adduce evidence or explain why they didn’t in a justified manner.
What happened?
Unfortunately, the Judge was not with me. He asked me whether CPR 27.8 gave him the power to adapt the hearing where necessary. I disagreed because I said that was the power to conduct teh hearing as he saw fit, not the power to allow evidence in that should have been filed/served in accordance with the prescriptive rules of the RTA SC Protocol and PD27B.
The Judge still relied on CPR 27.8 and allowed the Defendant to rely on the statements. Fortunately for the Claimant, the Judge still found in favour of the Claimant on liability.
Commentry
I disagree with how the Judge justified the defendant’s ability to rely on late evidence. In my view, the language reflects that of the low-value protocols, where it was determined that late evidence could not be relied upon after the deadline had passed. There are several Court of Appeal authorities on this matter. I accept that there is a ‘second bite of the cherry’, so to speak, when a claimant sends the court pack to seek permission to rely on further evidence not previously uploaded onto the OIC portal.
The defendant has a similar opportunity when they file their acknowledgement of service. However, the rules are very clear: they require the party to explain why that evidence could not be uploaded at the appropriate time. There may be a valid reason for an exception, and the judge may grant permission. Alternatively, the judge may not be satisfied and refuses permission.
What the defendant did here was fail to do anything in the period prior to the commencement of legal proceedings and to appropriately explain why the evidence had not been obtained. That was the key element and was not taken into consideration by the judge, who simply relied on his ability to control how the hearing was conducted as a means of allowing the statements in.
Imagine if the claimant had been unsuccessful. Had the judge not erred in admitting the evidence, there is a strong possibility that his evidence would have been accepted over the independent witnesses, and an alternative conclusion might have been reached. Could that claimant justify appealing such a decision? The issue is that, as with all small claims matters, there is limited cost recovery. He would have been able to recover the court fee for serving the appellant’s notice and the cost of any transcript. That would have been the extent of what he could recover, unless there was unreasonable conduct, which I do not think would be appropriate in this circumstance.
This is why certainty is essential in the small claims track, and why parties must carefully follow the RTA SC protocol and PD27B to ensure compliance. The Defendant insurer might have been required to convert the Claimant’s case based on an alleged independent witness with a very limited witness statement, of which is not uncommon in OIC liability hearings.
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.