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DWF achieves first CPR 44.16 Non-Party Costs Order against physiotherapy treatment provider

09 October 2020
The approach of the whiplash reforms and fixed costs they bring with them, has led to a surge in ancillary heads of loss being claimed, all with a view to increasing not only damages but also costs. The practice of "layering" has become all too common, evidenced by an increase in claims for rehabilitation frequently arranged with no prior recommendation by any medical expert. Miles Hepworth provides an example of this in practice in a case where DWF successfully obtained a Non-Party Costs Order against a rehabilitation company. 

Ali v Zylka
Luton County Court
July 2019


This matter involved a moderate whiplash claim with a recovery prognosis of 8 months for a neck and back injury.  The claimant also claimed physiotherapy treatment in the sum of £475.  An invoice for physiotherapy treatment had been provided by a rehabilitation company, but the discharge report was provided by a separate subcontracted physiotherapist. The charges claimed were an initial consultation of £75 plus 8 sessions at £50 each.  The claimant's CNF made no mention of the need for rehabilitation treatment. The claim was presented as hands on physical treatment, but there were clear concerns that hands on treatment had not taken place. In response to a challenge to the rehabilitation claim, a statement was provided by a file handler at the rehabilitation company, confirming that she had assessed the claimant's need for physiotherapy treatment and determined, due to lifestyle constraints, that remote treatment by way of an exercise pack was appropriate, rather than hands on physical treatment.  Notably the particular handler had no medical qualifications whatsoever. The statement suggested that a bespoke and personalised treatment exercise pack had been prepared. It was also suggested that the claimant had been telephoned at each treatment session. Disclosure of both the personalised treatment pack and telephone records was requested, but nothing was disclosed.   The statement from the rehabilitation company was served with a Civil Evidence Act Notice. DWF opposed this by way of an application requiring the statement maker to attend the trial and give oral evidence. The statement was then withdrawn and supplemented by a statement from the actual physiotherapist who had signed the discharge report.  Our suspicions were that the physiotherapist had never in fact seen the claimant, or provided any hands on physical treatment, or carried out any physical assessment.  We insisted that the physiotherapist attend the final trial of the matter to give oral evidence.

Three days before trial the claimant filed a Notice of Discontinuance on 20 November 2018. We then made an application pursuant to CPR 44.16(3) for a Non-Party Costs Order against the rehabilitation company. The application was made on the basis that much of the defence of the matter had been in relation to the rehabilitation treatment claim presented. Having regard to the significant involvement from the rehabilitation company and the statements from both the company and the physiotherapist, we argued that the physiotherapy treatment claim had largely been brought for the benefit of a party other than the claimant, namely the rehabilitation company.



At the application hearing the judge determined he was able to both add the rehabilitation company to proceedings, and deal with the substantive application itself.  The court considered whether the rehabilitation company had sufficient proximity to the claim to justify a non-party costs order. It accepted it did.  The court found that the involvement of the rehabilitation company went way beyond that of a mere physiotherapy provider, as demonstrated by the withdrawal of the first witness statement and the discontinuance after the second witness statement, and determined that there was sufficient proximity.   The court then considered whether to exercise its discretion, and decided that it was fair and just to make the order as requested on the basis that it was apparent that the physiotherapy claim had formed a major issue in the defence of the case.  The court also took account of the concerns raised, such as the fact that the initial assessment had been carried out by somebody who was not medically qualified, that there was no evidence that the telephone treatment had even taken place, and the fact that the witness statement of the physiotherapist appeared to indicate that he had never even spoken to the claimant even though he signed the discharge report. An order was made joining the rehabilitation company to the proceedings for the purpose of costs, and a costs order was made against them directly pursuant to CPR 44.16(3).


This is believed to be the first Non-Party Costs Order made directly against a physiotherapy treatment provider. It is worth noting that the extent of control or involvement by a rehabilitation provider may not be as self-evident as that exercised by a credit hire organisation, and therefore not as easy to establish sufficient proximity to the claim on the part of a rehabilitation provider as one might be able to establish in respect of a credit hire organisation, and it is essential that strong evidence of the extent of control is adduced.

Further Reading