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Defendant's Medical Evidence

I was recently in a position where I was about to take instructions from my client on putting forward an offer in settlement.  All the papers had been drafted when I received correspondence from the Defendant’s solicitors indicating that they intended to have my client seen by their own consultant orthopaedic surgeon.The Defendants are entitled to make such a request.  They had not indicated previously that they intended to do so, however the Directions Order from the Court (which is where the Court effectively sets a timetable for the claim to proceed to trial and which allows parties to rely upon medical evidence from certain experts and set dates when witness statements should be exchanged), provided for the Defendant to obtain their own medical evidence should they wish to do so.  It was no great surprise therefore except that the medical evidence in my view was unlikely to be controversial and queries in relation to the medical evidence could have been dealt with by the Defendant’s solicitors putting question to the our orthopaedic surgeon which again they are entitled to (known as Part 35 Questions).The point here is that if the case went to Court – rather than settled in advance – and concerns and issues relating to whether any ongoing symptoms and disabilities are due to the accident, will in fact not be clarified until our client has seen the Defendant’s consultant’s report. However, there is no obligation on the Defendant’s solicitors to disclose any medical evidence they obtain.  They could quite easily put this to one side and ultimately accept the Claimant’s medical evidence should they wish to do so. They are almost in a position where they can ‘have their cake and eat it’. I will in any event have to then obtain a joint report between my consultant orthopaedic surgeon and the Defendant’s consultant orthopaedic surgeon.  This is obviously from consultants of like discipline. The whole purpose of the joint report is to clarify to the Court what the issues are in relation to the injury, ongoing symptoms and the prognosis as well as the issues in respect of causation.What the parties’ consultants should remind themselves of is that there is no obligation on them to agree matters when they prepare their report.  Instead, the requirement is for them to set out, normally in letter form, the matters on which they are able to agree and the matters in which they cannot agree together with appropriate reasons.A Judge can then take a view on what he considers the true position to be which is of course helpful in the long run and certainly goes some way to narrowing the issues.  There is a requirement for the parties to obtain such joint report.  What concerns me however is that in my view the Defendants should really consider very carefully whether there is any benefit at all to the claim in obtaining their medical evidence given the additional cost, inconvenience to the Claimant and delay involved.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046,  or email and one of our specialist personal injury team will review your compensation claim for free