Psychiatric’s Report Deemed Excessive – unreasonably procured
DYLAN MURRAY v WILLIAM SMITH (2013)
CC (Horsham) (District Judge Taylor) 16/05/2013
CIVIL PROCEDURE - COSTS - PERSONAL INJURY - CIVIL EVIDENCE
COSTS BETWEEN THE PARTIES : COSTS ORDERS : EXPERT REPORTS : PRE-ACTION PROTOCOLS : PROPORTIONALITY : PSYCHIATRIC EVIDENCE : ROAD TRAFFIC ACCIDENTS : SUFFICIENCY OF EVIDENCE : CHILD SUFFERING MINOR INJURIES IN ROAD TRAFFIC ACCIDENT : FIRST MEDICAL REPORT FROM PSYCHIATRIST : WHETHER COST OF REPORT DISPROPORTIONATE : CIVIL PROCEDURE RULES 1998 r.44.4
Where a six-year-old child had suffered minor injuries in a road traffic accident with a general trauma expected to resolve within a few months, it had been disproportionate for his solicitors to obtain an initial medical report from a psychiatrist. The cost of it was disallowed, as they could have asked a general practitioner, or the orthopaedic specialist subsequently consulted, to add a paragraph on psychiatric trauma.
The court was required to make detailed assessment of the costs incurred by the six-year-old claimant (M) in personal injury proceedings against the defendant driver (S) arising from a road traffic accident.
M had suffered blows to the ear, anterior right thigh and upper shin causing bruising and discomfort, and he recovered in about six weeks. He had suffered a general trauma from which he was expected to recover within four to six months, and he had been given five sessions of psychotherapy. Liability was not disputed and M received £1,400 in general damages and £400 in special damages, agreed by the court. The judge made an overall award without distinguishing between physical and psychiatric injuries. The parties agreed costs, except regarding a psychiatrist's report submitted by M that cost £1,086 including VAT. It was the first medical report in the matter obtained on M's behalf, was of the most general character, and had been compiled on the basis of a telephone conversation between M and the psychiatrist. No specific diagnosis was made relating to psychiatric trauma. There was a subsequent medical report from an orthopaedic consultant.
S submitted that the psychiatrist's report should never have been obtained, that it was only summary and general, and was too expensive, and that M should have obtained a single report from a general practitioner, as they were used to diagnosing minor psychiatric trauma, and only if he recommended it should a psychiatric report have been considered. S contended that the orthopaedic consultant's fee represented a sufficient level of expenditure on medical reports. M argued that the White Book, Vol.1, (London, Sweet & Maxwell 2013) s.C13, para.7.4 dealing with the pre-action protocol for low value personal injury claims arising from road accidents stated that a medical report should always be obtained and on receipt of it a claimant's solicitor should consider whether a second one was required. M further argued that it was not clear that a non-psychiatrist would have the necessary expertise to make the kind of confident diagnosis that the psychiatrist had made, and a second report, from a psychiatrist, might have been necessary.
HELD: (1) Under CPR r.44.4, the court should disallow costs that had been unreasonably incurred or were unreasonable in amount, and should only allow costs that were proportionate to the matters at issue; any doubt had to be resolved in favour of the paying party. Factors to be considered were conduct, the value of the claim, its importance to the parties, its complexity, the skill, effort, specialised knowledge and responsibility involved, the time spent, and the circumstances in which the work was undertaken. Proportionality meant that the parties should assess the relevant matters at the outset and plan in advance the necessary work, the time and the appropriate resources needed, and the probable overall costs. Paragraph 7.4 was broadly drafted and should not be interpreted so as to contradict r.44.4. A solicitor should not blindly set about obtaining a medical report and only then ask himself what medical evidence was appropriate to the case, but should plan in advance what medical evidence should be obtained. If M's solicitor had considered at the start of the case what medical evidence was needed, he would not have thought a psychiatrist's report should be obtained first. He could, for instance, have asked the orthopaedic specialist to add a paragraph regarding psychiatric trauma, or have simply instructed a general practitioner and asked him to do the same. Those solutions were commonly employed. Going to a psychiatrist first was an unusual step. It was doubtful that it was reasonable to incur the cost of a psychiatric report at the outset. Accordingly, the cost of the psychiatrist's report was not a reasonable or proportionate expense and was disallowed (see paras 3-4, 10-15 of judgment). (2) By agreement, S recovered half his costs and M half of his including a success fee, but net of fees for instructing junior counsel for the instant hearing and senior counsel in relation to the principle of whether the cost of two medical reports should be recovered. That was because an offer had been made by S that equalled the amount of costs recovered by M at the instant hearing and S had done as well as that offer (near end of para.16).
Comment: the claimant solicitors went over the top with medical reports and was unable to recover the cost of the Psychiatrics report. Insurers should perhaps consider that in minor trauma cases, they should communicate an express warning to claimant’s solicitors who lay it on thick as to what reports they intend to source.