Kearsley v Klarfeld - Low Impact Collisions; PI Controversy Du Jour
Kearsley v Klarfeld - Low Impact Collisions; PI Controversy Du Jour
[2005] EWCA Civ 1510 – Court of Appeal (Civil Division) (Brooke LJ (V-P) Dyson LJ, Carnwath LJ) 6th December 2005
Introduction
In this case the Court of Appeal considered the approach the lower courts should take to road traffic accidents where a defendant alleged that the impact was of insufficient velocity to cause injury. It was in fact an appeal regarding a case management decision, but dealt with wider issues affecting these claims.
Facts
The facts of the accident itself could scarcely be simpler. On 22nd July 2003 the defendant slipped his foot of the clutch of his car which consequently travelled a short distance into the rear of the claimant’s. Liability for the accident was never in dispute.
The procedural history is much more convoluted.
A letter of claim proposing Dr Picardo, a GP, was sent on 28th July 2003. The defendant’s insurers replied counter-proposing a consultant orthopaedic surgeon, Mr Newman. The claimant’s solicitors requested this expert’s CV. Having not received it by 20th August 2003 they unilaterally instructed Dr Picardo.
Simultaneously the insurers received a report from Mr Ralph, an engineer from Northern Assessors. Mr Ralph boasted no particular qualification of relevance, and the only information upon which he based his opinion was his instructions from defendant’s insurers. These included a brief assessment of the damage to defendant’s car, but Mr Ralph did not himself examine either vehicle. Nevertheless he felt able to opine that defendant was travelling at less than 3 mph at the point of collision and that such a collision would have caused no unusual force to have been applied to claimant.
Dr Picardo produced a report dated 10th September 2003 which credited claimant with mild to moderate whiplash expected to resolve within 8 months of the accident. The insurers responded to this report by observing that the medical records had not been considered and putting questions to Dr Picardo based upon defendant travelling at a low speed. These were duly answered. Dr Picardo was to write again on 8th September 2004 reiterating his belief that claimant had suffered whiplash and appending studies showing a lack of strong correlation between the extent of vehicle damage and injuries in minor collisions.
Proceedings were issued on 1st December 2003. A “non-contentious” Defence (presumably one that blandly required the claimant to prove his injuries) was duly served. Both parties filed allocation questionnaires suggesting that the claim should be valued in the fast track.
Mr Newman then produced a report (without having seen claimant, albeit he did so much later) criticising Dr Picardo and stating that claimant had not suffered the injuries claimed. On 9th July 2004 an amended defence was filed citing the evidence of Mr Newman and Mr Ralph and stating that “the defendant’s case is that the claimant is fabricating his symptoms and that no injuries were truly sustained by[him]”.
On 22nd July 2004 standard directions were given. On 2nd August 2004 the defendant solicitors wrote to the court seeking allocation to the multi-track and permission for oral expert evidence. They did so on the basis that the defendant’s allegations were serious ones that could only be properly dealt with by permitting the parties to call expert evidence as they saw fit. They cited the case of Rooney v Graves (unreported, Liverpool County Court) where HHJ Stewart QC had stated that the court must investigate allegations of fraud rigorously.
On 15th September 2004 claimant’s solicitors indicated that they wished to rely on further expert evidence. They were later to disclose a report dated 2nd November 2004 of Mr Nee, a consultant orthopaedic surgeon professing a special interest in low velocity collision injuries. Mr Nee, having examined claimant, credited his symptoms and expressed doubts about Mr Ralph’s conclusions.
On 11th November 2004 the defendant solicitors wrote to the claimant solicitors stating that the matter required a 2 day trial with oral evidence and should be transferred to the multi-track. The claimant solicitors then on 16th November 2004 applied to re-allocate to the multi-track and for permission to call Mr Nee, in effect adopting the arguments previously made by the defendant solicitors.
Decision at First Instance
The claimant’s application came before District Judge Stephens on 21st December 2004. Perhaps somewhat inconsistently in light of their previous arguments, the defendant solicitors at the hearing resisted the application for permission to rely upon Mr Nee.
The district judge refused the application both in relation to further evidence and to reallocation. She took the view that the oral expert evidence was not necessary and that it would lead to disproportionate costs given the low value of the claim. The claimant appealed.
Decision on the First Appeal
Judge Tetlow heard the appeal on 10th March 2005 and allowed. He held that the district judge should have allocated to multi-track on the basis that this was a fraud case and therefore needed to be properly scrutinised. He held that the experts would have to be cross-examined. He gave permission the claimant to rely upon Mr Nee and also his own engineer as to do otherwise would not achieve equality of arms between the parties.
The judge gave fresh directions accordingly. The defendant applied for permission to argue a second tier appeal. This was granted by the Court of Appeal on the ground that it raised a point of general importance.
Court of Appeal Decision
The judgment of the Court, given by Brooke LJ, was for the claimant. The Court held that the Judge was right to overturn the original decision and, having thus reached the position where he had to exercise the court’s discretion afresh, was entitled to give the directions he did. It appears that on a full reading that that the Court went further than merely refusing to interfere with the Judge’s directions and implicitly endorsed his approach.
However, the Court also took the opportunity to deal with several issues of wider importance beyond the immediate ratio of the appeal.
The Court noted that low velocity impact cases were of one of those problems that recur in low value cases and cause considerable difficulties when they do so (the issue had already been to the Court of Appeal in Armstrong v First York Ltd [2005] EWCA Civ 277). The issue was in this sense the successor to automatic strike-outs, credit hire and CFA litigation. In light of this the Court recommended that a cohort of cases be tried together before a specialist High Court Judge to provide authoritative guidance to the generic issues in such cases and thus reducing the need for the matters to be dealt with individually and thus inconsistently and at great expense.
The Court also noted that a problem had been created by the custom of defendants in these cases to plead positive allegations of fraud, apparently in deference to the judgment of Belinda Bucknell QC, sitting as a deputy high court judge, in Cooper v P & O Stena Line Ltd [1999] 1 Lloyd’s Rep 734. The perceived need to do so was misconceived. There was no burden on the defendant to prove fraud in order to succeed, and there was no need for a substantial leading of fraud, although if there were positive reasons to disbelieve a claimant these should be pleaded in accordance with CPR 16.5.
The Court finally commented upon case management issues. It indicated that in such cases it was inappropriate for the expert evidence to be determined on paper. It stated that it in such cases “it would not be wrong or disproportionate to allocate that would ordinarily be a fast track claim (by reason of its low value) into the multi-track on the grounds that the criteria of oral evidence are satisfied and the trial is therefore likely to last more than a day”. The Court further suggested that pre-action claimant advisers should give early disclosure of relevant medical records and give early access to their client’s vehicle for inspection. Correspondingly, insurers should state at an early stage that they regard the claim as a low velocity impact case and would therefore be seeking more expensive advice than the value of the claim would justify.
Comment
There are various points arising out of this judgment.
Test Cases. The Court of Appeal’s recommendation will almost certainly be taken up, and we practitioners will watch with interest. The rationale for the recommendation is unimpeachably laudable. However, this writer would query whether this issue is an appropriate one to be determined by test cases. Unlike previous controversies decided by a cohort of cases, there appear to be no questions of law involved. That being so, the Court’s decision could be in no way binding, and indeed it is difficult to see how it could properly be considered persuasive.
As a matter of practice it seems likely that, save in those cases blessed with an especially robust judge or particular striking evidence, the county courts would fall in line with the decision in the test cases. This would have the advantage of certainty, but arguably at the costs of doing justice to the eccentricities of the evidence in the individual cases.
The alternative scenario is that the results of the test cases are split; it is found that some of the cohort have genuinely suffered whiplash and some have not. The converse considerations would then apply. County court judges would be able to freely consider the evidence in individual cases, but this in turn might beg the question of the test cases’ purpose.
Pleading. The import of these comments seems straightforward. The defendant has merely to plead reasons for resisting the claim.
However, for this writer the logic and candour of this position is questionable. Arguably a defendant in these circumstances does have to effectively prove fraud to succeed. The claimant’s case is that he has suffered significant injuries in a car crash. This is not something he can realistically be mistaken about. Therefore his failing to prove any injuries, and thus the defendant succeeding, can only be on the basis of his having been found to have brought a fraudulent claim. The Court of Appeal’s diplomatic fiction to the contrary, reflecting a general habit of judgements recording that a claimant “has not made out his case” when the implicit finding can only be that he lied, arguably is not the best advertisement for the robust transparency of our jurisprudence.
It is also worth noting that the comments on pleading are almost certainly obiter; there can be little doubt that the defendant in this case did put forward a positive pleading of fraud, albeit without using that actual word “fraud”.
Procedure. Unless and until the test cases might later provide otherwise, this judgment sets out the approach to be taken to the case management of low velocity cases. There remains of course a discretion to be exercised, and indeed the comments on track allocation are perhaps too equivocally phrased to be of great assistance. It should also be noted that the Court was silent on whether the gravity of a an issue of fraud was in itself justification for the multi-track (as per Rooney v Graves) in a case were the elements of need for oral expert evidence and the likelihood of the trial lasting more than a day were not present.