, however, neither the Code, nor the Protocols, provides any sanction for breaches of these rules. In relation to the position of an agency, section 4.6 refers to CPR 45.29, presumably the bar to recovering an expert's fees, in soft tissue injury cases, when he or she is linked to an organisation providing treatment that he or she has recommended (see CPR 45.19(2B) and CPR 45.29I(2B)). But this underlines the lack of any sanction for a solicitor referring the claimant to its pet provider. It is particularly hard to see what, if anything, the requirement to disclose any connection to the provider is required to achieve (except perhaps to rub the defendant's nose in it). In the absence of any apparent sanction, the best a defendant is likely to do when a solicitor fails to disclose a connection to a treatment provider is to nurture the seeds of judicial suspicion, when some other dubious element has already arisen in relation to a claim for rehab treatment.
Pursuant to section 2.3 and 2.4 of the Code, the claimant's solicitor is obliged to communicate the claimant's needs to the compensator as soon as practicable, and to provide sufficient information to make a well-informed decision about the need for rehabilitation assistance. Section 3.1 follows on from this by requiring the compensator to contact the claimant solicitor as soon as practicable to seek to work collaboratively on addressing the claimant's needs.
"In all cases, the claimant's solicitor should consider, with the claimant and / or the claimant's family, whether there is a need for early rehabilitation. The results of that discussion should be recorded in section C of the electronic Claims Notification Form, which will be transmitted through the Ministry of Justice Claims Portal to commence the claim. That form requires details of any professional treatment recommendations, treatment already received (including name of provider) and ongoing rehabilitation needs".
"[I[n all cases, the claimant solicitor should communicate with the compensator as soon as practical about any rehabilitation needs, preferably by electronic means. The mechanism of completion and transmission of the Claims Notification Form should facilitate this process and should take place before any significant treatment has been commenced."
"Where a claimant has decided not to take up a form of treatment that is readily available in favour of a more expensive option, the reasonableness of that decision may be a factor that is taken into account on the assessment of damages".
These provisions are reinforced by para 6.7 of the RTA Protocol, under which the claimant must set out details of rehabilitation in the CNF, though again without providing any sanction for failing to do so.
In the absence of any express provision that damages for rehab must be disallowed solely because of a failure to set out rehab needs in the CNF, the strongest argument a defendant is likely to be able to run is that damages for rehab costs should be reduced when the failure to notify rehab needs has prevented a defendant from arranging rehab at a lower cost than that incurred by the claimant. Indeed, if the defendant can show that it was willing to fund rehab itself, it is strongly arguable that no damages should be awarded in respect of treatment costs at all (bearing in mind that the controversial - to put it mildly - requirement in Copley v Lawn [2009] EWCA Civ 580 for a defendant, who provides a claimant with a courtesy vehicle, to pay the claimant in damages the cost to it of providing this vehicle, does not apply - expressly at least - to other cases where a defendant funds provision of something to avoid the claimant having to pay for it him or herself).
However, the tensions between the central purpose of the Code, and the use a defendant is likely to wish to make of it, are plain on the face of section 4.1. If a claimant may include details of treatment already received, this suggests that no obligation arises - in every case, at least - to notify the defendant of prospective rehab needs, in order to allow the defendant to fund them. It is difficult to reconcile this with the suggestion in section 4.2 that rehabilitation needs should be communicated before treatment begins. The wording of section 4.3 is too equivocal to give rise to any clear or automatic effect on the damages awarded when rehab needs are not flagged up in the CNF, though it could be argued that the availability of less expensive treatment will be that much harder to establish if the claimant does not tell the defendant at the outset of his or her intention to have treatment.
As this argument will only arise where the claimant has failed to notify the defendant in advance of an intention to undertake physiotherapy, the defendant may also have difficulty persuading a court to disallow rehab costs on this basis, unless it can show (by analogy with the position re courtesy vehicles in Copley) that it could have funded rehabilitation, and perhaps also that it could have funded this for less than the claimant would have paid in his or her home area for treatment. Defendants running this argument would therefore be well advised to have admissible evidence showing who could have provided this treatment, how far from the claimant's address it could have been provided, what the cost of it would have been, and that they would have paid for the treatment themselves. This evidence must also clearly show the position during the period following the accident, not on some random day months or years into the future.
"ensure that all invoices are within reasonable market rates", or section 6.1's comment that "the compensator will not be required to pay for treatment that is unreasonable in nature, content or cost", as the defendant will bear at least a practical burden to show what was reasonable.) These principles will apply to any case where the defendant wishes to challenge the rate at which treatment has been charged, whether or not by reference to the provisions of the Code.
It should also be remembered that section 6.2 requires a defendant to respond within 15 days of disclosure of the triage report, setting out (i) the extent to which the recommendations have been accepted and rehabilitation treatment will be funded, and (ii) justifications for any refusal to meet the cost of recommended rehabilitation and (if appropriate) alternative recommendations. While a claimant who begins treatment, without awaiting this response, is expressly reminded about the risk of not recovering the costs of treatment as a result, the 15 day time limit at least implies how long a claimant is obliged to wait before pressing ahead. A defendant who is tardy in responding to a request for rehabilitation may therefore have difficulty persuading a court that damages for the costs should be limited, even if it can show that treatment could have in fact been provided to the claimant at a lower or no cost.
"Unless there is a medico-legal report containing full recommendations for rehabilitation, which both parties are happy to adopt, an initial Triage Report should be obtained to establish the type of treatment needed. In most cases, the Triage Report will be the only report required".
Section 4.8 envisages that "the assessment agency will be asked to carry out the Triage Report in a way that is appropriate to the needs of the case, which will in most cases be a telephone interview within seven days of the referral being received by the agency". The report is expected to be "very simple, usually just an email". The Code envisages that (in section 4.4) that assessment and discharge reports may be required, but only where the parties agree this.
Counter-intuitively, perhaps, when it is not always easy to see how any sort of effective planning can be done for treatment when the claimant is not seen in person, the Code seems to envisage that he default position will be triage by telephone, rather than an assessment report in person. This, however, is likely to be to the defendant's benefit, as the cost will usually be lower. The Code provides fairly strong support for an argument that an assessment and discharge report should not, in the standard lower-value case at least, be necessary (at least, without the defendant's agreement in advance to them being produced). If the reports are not generally necessary, it seems to follow that assessment and discharge sessions - regularly charged at above the rate for a standard treatment session - are unnecessary as well.
"In all cases, the [triage report] should be published simultaneously or made available immediately by the instructing party to the other side. This applies also to treatment reports [and discharge reports] where the parties have agreed that they are required."
The bar (in section 4.10) to using the triage report, or any other documents produced during the triage process, in litigation (which does not apply to any assessment or discharge reports - see section 5.7) does not detract from the disclosure requirement. Questionning whether it was necessary to obtain the report, and incur the cost of doing so, is arguably not using the report itself in litigation.
A useful by-product of the disclosure requirement is section 4.9's recognition that "both parties will have the right to raise questions on the report(s), disclosing such correspondence to the other party". A defendant, in other words, need not sit there like a lemon when the report is produced, but can ask the treatment provider to explain, for example, why any therapy is required, why a particular amount of therapy is required, or why some cheaper treatment is not sufficient, not least because the triage report should include (among other things) the type of intervention or treatment recommended, the likely cost and duration of treatment, and the expected outcome of such intervention or treatment (section 5.2). Another potential avenue for exploration is envisaged by section 4.11 - the extent of treatment necessary due to the index accident, rather than any other condition.
Indeed, nothing in the Code or the Protocols seems to prevent a defendant from adducing evidence from another provider to suggest, not just that therapy could have been provided at a lower cost,