Kearsley v Klarfeld [2005] EWCA Civ 1510

[2005] EWCA Civ 1510Case No B3/2005/0654
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE MANCHESTER COUNTY COURT
Judge Tetlow
District Judge Stephens
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/12/2005
Before
LORD JUSTICE BROOKE(Vice-President, Court of Appeal, Civil Division)LORD JUSTICE DYSONLORD JUSTICE CARNWATH
Between
Alan Mark KearsleyClaimant/Daniel KlarfeldDefendant/
Mark Turner QC & Paul Higgins (instructed by Horwich Farrelly) for AppellantBenjamin Williams (instructed by Coyne Learmonth) for RespondentHearing Hearing date: 8th November 2005
JudgmentLord Justice Brooke : This is the judgment of the court.
[1]This is an appeal by the defendant from an order made by Judge Tetlow in this personal injuries action in the Manchester County Court on 10th March 2005 whereby he allowed an appeal by the claimant from an order made by District Judge Stephens in the same court on 21st December 2004. Although Judge Tetlow’s order was for case management directions, Lord Justice Brooke granted permission for a second appeal because it raised a point of practice of general importance. On 8th November this court heard the appeal and dismissed it, for reasons that would be given later. These are our reasons.[2]The claimant’s accident occurred on 22nd July 2003. The defendant accepted liability immediately, while disputing causation, and his insurers have already paid for the cost of repairs to the claimant’s car. The defendant says he stopped his car a few feet behind the claimant’s car, and that while he was waiting for the claimant to move forward, his foot slipped off the clutch and his car collided with the rear of the car in front. On 28th July the claimant’s solicitors gave notice of a personal injury claim and suggested that their client should be examined by Dr Picardo, who is a GP. They did not put forward three names, as the Personal Injury Pre-Action Protocol requires. The defendant’s insurers rejected that proposal, and instead suggested the name of Mr Newman, who is a consultant orthopaedic surgeon and traumatologist. On 6th August the claimant’s solicitors asked for Mr Newman’s CV. On 19th August the defendant’s insurers said that this would be forwarded to them. The claimant’s solicitors were apparently not prepared to wait, and on 20thAugust they went ahead unilaterally and instructed Dr Picardo.[3]On the same day the defendant’s insurers procured a report from Mr Ralph, who is a representative of a firm called Northern Assessors. He does not profess any professional qualifications other than being a member of the Motor Institute (which does not require any particularly advanced qualifications as a condition for membership). On the basis of the instructions he received from the defendant’s insurers, which included a brief assessment of the cost of repairs to the claimant’s car (which he did not examine), he concluded that the collision had taken place when the defendant was driving at less than 3 mph. He expressed the opinion that in these circumstances the collision would not have caused any unusual force to be applied to the claimant as he sat in his car.[4]On 5th September the defendant’s insurers forwarded Mr Newman’s CV to the claimant’s solicitors. On 10th September Dr Picardo wrote his report. He concluded that the claimant had suffered a soft tissue injury to his neck and upper back, from which he would recover within about eight months. He described the injury as a mild to moderate whiplash injury. The claimant had suffered a whiplash injury in the past, and Dr Picardo said that it was well recognised that a history of neck pain in the past could delay the recovery period.[5]His solicitors sent his report to the defendant’s insurers on 8th October. On 26th November those insurers observed that Dr Picardo had not read the claimant’s GP’s notes. They asked him some questions on the basis that the defendant’s car was travelling at a low velocity. Dr Picardo responded to these questions during December.[6]On 1st December the claim form was issued. It named the wrong defendant, and it later had to be amended and re-served. A defence was filed in non-contentious terms. On 5th May 2004 the claimant filed his answers to an allocation questionnaire without waiting for an amended defence: He requested allocation to the fast track. On 10th May the defendant similarly asked for allocation to the fast track. His solicitors gave a time estimate of one day, and estimated that their total costs would be £7,000. It is not clear to us whether the amended claim form had been served by this stage: there was certainly a delay before this happened.[7]On 9th July 2004 an amended defence was filed. It referred to the conclusions of Mr Ralph’s report and described Mr Newman’s expertise at some length. It continued:
“In this case Mr Newman concluded that:- (i) It is very unlikely that injury was sustained by [the] claimant; (ii) If any symptoms were truly experienced then these would not have been associated with the functional detriment claimed over the period of time described. (iii) The prognosis offered by Dr Picardo is unduly pessimistic and it is highly unlikely that symptoms which apparently take so long to settle can be sustained in impacts of such minimal severity. In these circumstances, and guided by the opinions of Northern Assessors and Mr Newman, the defendant’s case is that the claimant is fabricating his symptoms and that no injuries were truly sustained by [him].”
This amended defence was signed by a trainee solicitor.[8]Three days later the defendant’s solicitors served Mr Newman’s report, which was along the lines indicated in the amended defence. He had not examined Mr Kearsley before writing the report, although we were told that he did so much later. In a covering letter, Mr Newman expressed doubts about Dr Picardo’s expertise in a case of this type. The defendant’s solicitors, however, took no immediate steps to alter the answers they had given to the allocation questionnaire.[9]On 22nd July Deputy District Judge Hamlin gave standard directions on paper. He allocated the claim to the fast track in accordance with the requests from both sides, and he permitted the claimant to rely on Dr Picardo and the defendant to rely on Mr Ralph and Mr Newman. Any application for oral evidence to be permitted at the trial was to be made by 19th November, and a trial window in February 2005 was set for the trial. This order was sealed and issued on 28th July.[10]Instead of asking a district judge to reconsider this order, on 2nd August the defendant’s solicitors filed further answers to an allocation questionnaire, supported by written submissions. They now sought allocation to the multi-track, and permission for the experts to give oral evidence. They also gave a new estimate of two days for the trial, and a revised estimate of £12,000 for their total costs. In an addendum to their answers they explained why they were seeking these directions. They said that their client’s allegation was a serious one and could only be properly dealt with by the parties calling such expert evidence as they saw fit. Among other things they referred to a recent judgment by Judge Stewart QC, the designated civil judge at Liverpool, in Rooney v Graves in which he said that in cases in which an allegation of fraud was made the court must investigate the claim rigorously. The court took no action, presumably on the basis that case management directions had so recently been given.[11]On 8th September Dr Picardo wrote a further letter in which he reiterated his belief that the claimant had suffered a mild whiplash injury. He appended a small anthology of studies which tended to suggest that there was no strong correlation between the extent of vehicle damage and injuries in minor collisions. He did not comment on Mr Newman’s report as such.[12]On 15th October the claimant’ solicitors evinced for the first time a wish to call a more specialist expert. In due course they disclosed a report from Mr Nee dated 2nd November. He is a consultant orthopaedic surgeon who professes a special interest in injuries allegedly sustained in low velocity collisions. He had examined the claimant and credited his symptoms. He also expressed doubts about the validity of Mr Ralph’s conclusions.[13]On 11th November the defendant’s solicitors stated in a letter to the claimant’s solicitors that oral evidence was necessary. They added that two days were required, and that the case should be transferred to the multi-track. On 16th November the claimant’s solicitors applied to the court for a re-allocation to the multi-track and permission to call an orthopaedic surgeon instead of Dr Picardo. On 21st December the matter came before District Judge Stephens on a 15-minute appointment. Although the hearing in fact took twice that time, it is clear from the transcript that it was conducted throughout under severe time pressures.[14]At the hearing the defendant’s solicitors resisted the application for permission to call Mr Nee. The claimant’s solicitors in their turn relied on the arguments that had been addressed by the defendant’s solicitors themselves three months earlier to the effect that when fraud was alleged, such an allegation could only properly be conducted by the parties calling such expert evidence as they saw fit because it was such a serious allegation to make.[15]The district judge considered that nothing material had changed since Deputy District Judge Hamlin’s order five months earlier. She was worried that the directions that were being sought were disproportionate. This was a relatively low value claim, and she had to think of the proportionality of the costs and expense. The way the evidence of Mr Newman was put was going to come down to the credibility of the claimant as a witness at the trial. Case management directions had already been given for the three non-lay witnesses, “all of it being paper exercises and questioning”. She really could not see that this was a case that ought to be completely re-tracked and completely re-timetabled, with the trial window being extended and the trial being extended to two days. She directed a timetable leading to a joint meeting between Mr Newman and Dr Picardo and refused to give directions that they give evidence orally. She put back the trial window by two months, because of the delay caused by the claimant’s change of strategy in mid-October.[16]Judge Holman gave the claimant permission to appeal, and the appeal was heard on 10th March 2005. In his judgment Judge Tetlow said it was clear to him that there was a need to have regard to the overriding objective that justice should be done. The claimant was a 45-year old male nurse, and if fraud was found against him there might be consequences for him that were more serious than merely losing this case. An allegation of fraud was a matter that had to be taken seriously, and there needed to be a proper examination of the issues at the trial.[17]The judge seems to have thought, wrongly, that the deputy district judge had made his case management directions after the defendant’s solicitors had estimated a two-day trial on the basis of “experts all round”. He observed that the deputy district judge had not taken a point about fraud being alleged. He said that the claimant’s solicitors should have sought to set aside his order, which they failed to do, and he felt sympathy for District Judge Stephens because it was quite clear that not enough time had been allocated to her for dealing with the matter. It appeared that she had felt bound to uphold the earlier order.[18]Judge Tetlow said that she had been wrong not to revisit the matter. She should have concluded that because this was a fraud case, it should be in the multi-track, and that it would need to be properly looked at. She should also have realised that unless Dr Picardo and Mr Newman were going to agree suddenly, they would have to be called to be cross-examined, as would Mr Ralph. The judge felt she should have given leave to appeal out of time against the original order. He added:
“It seems to me fairness dictates in a fraud case it be investigated properly. No one should lose his name merely because the Rules seem to say otherwise. They are not our masters. They are to help matters progress. If things go wrong then they must be put right.”
[19]He went on to say that any trial judge faced with this case would accede to a request for an adjournment “at vast expense” so that the proper expertise could be put in place, and so that there could be an engineer to balance Mr Ralph if so required. He was firmly of the view that the matter should be in the multi-track, with an estimate of two days so that the matter could be properly dealt with.[20]He said that rather than directing the two medical men to meet to see if they could agree, consideration should be given to the question whether another expert was necessary for the claimant. Dr Picardo was a GP, and as the judge understood it, when he was asked to comment on Mr Newman’s report, he had listed what there was in the literature and did not make any comment on the report. He did not profess any expertise, unlike Mr Newman, who had poured scorn on Dr Picardo’s expertise and the quality of his examination without himself dealing with the literature Dr Picardo had produced. The judge felt that there was not equality of arms or a level playing-field, and since the claimant did not think that Dr Picardo was the right man, the Court should look again and revisit the order.[21]He repeated that the Rules were our slaves and not our masters, and that if he were the trial judge he would say that the case was not in a proper shape for trial, nor was it fair. He therefore permitted the claimant to rely on Mr Nee in place of Dr Picardo and to file and serve a report from an engineer. He also gave consequential directions. Two days have now been fixed for a trial starting on 10th January 2006. As we have said, we dismissed the defendant’s appeal, and this trial date still stands.[22]In giving our reasons for dismissing the appeal, it is necessary to put the issues in their contemporary context. From time to time problems arise in the context of personal injury litigation in this country which cause considerable case-handling complexities in the county courts during the period before law and practice have learned how to accommodate them. When they arise, the same point tends to crop up again and again all over the country, usually in connection with comparatively low value litigation. In the last ten years this phenomenon has been observed in relation to the “automatic strike-out” cases under the old CCR O 17 R 11 (see Bannister v SGB plc [1998] 1 WLR 1123), the credit hire litigation (see Dimond v Lovell [2002] 1 AC 384) and the CFA litigation (see Callery v Gray [2002] UKHL 28; [2002] 1 WLR 1000; and Hollins v Russell [2003] EWCA Civ 718; [2003] 1 WLR 2487). It is currently being encountered in connection with claims for personal injury arising out of low velocity impacts between two motor vehicles even if the scale of the problem is not as all-pervasive as those we have mentioned,.[23]In this type of case, of which Armstrong v First York Ltd [2005] EWCA Civ 277; [2005] RTR 19 is a recent example, the driver or front seat passenger in a motor vehicle claims damages for personal injury (usually in the form of soft tissue injuries to some part of the spine) after their vehicle has been hit by another vehicle. The insurers of the other vehicle then assert that the impact was so insignificant that they cannot have suffered the injuries of which they have made complaint. They rely on principles of bio-mechanics in support of their contention that the claimants cannot be telling the truth. In Armstrong v First York Ltd this court rejected a contention that if the court cannot detect any logical flaw in the expert evidence tendered by the defendant, judgment must be entered for the defendant, however honest the claimant(s) may have appeared to the court. Brooke LJ said at para 27:
“In my judgment there is no principle of law that an expert's evidence in an unusual field - doing his best, with his great experience, to reconstruct what happened to the parties based on the second-hand material he received in this case - must be dispositive of liability in such a case and that a judge must be compelled to find that, in his view, two palpably honest witnesses have come to court to deceive him in order to obtain damages, in this case a small amount of damages, for a case they know to be a false one.”
[24]It is a striking feature of that case, which was originally tried by Judge Stewart QC in the Liverpool County Court on 11th March 2004, that that judge had been very favourably impressed by the evidence of the forensic engineer who gave oral evidence as a single joint expert. I described the effect of this witness’s evidence in these terms (at para 14):
“He was reporting on the basis of what he had been told about the damage to the bus and an inspection that had been made on his behalf to the Ford Fiesta after repairs had been carried out. His evidence was that in order for the Fiesta to move just on its springs, without the vehicle's wheels moving, the impact would have had to be such as to cause some distortion to the panels of the vehicle, but there was not any. But if there was no distortion to the panels of the vehicle and the vehicle did not even move on its springs, there would be no movement of the occupants of the vehicle, much less any movement which would possibly injure their spines. [He] said that unless the person in question is peculiarly vulnerable the vehicle would have to move on the road surface in order to cause injury. There was no evidence that this vehicle moved across the road surface at all with either the footbrake or the handbrake on. [Counsel for the defendant] encouraged us to read the transcript of [this witness’s] evidence, which I have done; and he stood up to a lot of questioning by counsel instructed by the claimants and also by the judge himself. His thesis, as the judge found, stood up to this questioning.”
[25]Judge Stewart said that this witness gave his evidence in a way which was logical and consistent, and accepted that there was some force in counsel’s criticism that the claimant had not called or applied to call any engineering evidence from another expert, to which the defendant would not have objected. (The claimants had in fact incurred £40,000 worth of expense in bringing these two very small claims to court without having to incur any further expense in instructing their own expert witness). But although the judge could not point to any flaw in the witness’s evidence, he entered judgment for the claimants because of his clear and unequivocal impression of them as witnesses. He had earlier described how they had given their evidence in a transparently truthful, honest and guileless way, and later spoke of their veracity and straightforwardness. He proceeded to award one of the claimants a little over £1,000 and the other claimant £2,000, and this court upheld his judgment.[26]I mention this because we have now been shown the transcript of a judgment by Judge Holman in the Manchester County Court which he delivered on 6th April 2005 in the unreported case of Liptrot v Charters, following a two-day trial. The defendant’s car had run into the car in front of her, and the claimant was awarded £1,500 damages for a neck sprain. The judge prefaced his judgment by saying that from the simple facts of the case had emerged a strongly contested dispute, with an allegation that the claim for damages for personal injury was fraudulent. He said that this was becoming an increasingly familiar occurrence in his court. The same expert witness who had impressed Judge Stewart so much gave evidence for the defendant, and an expert medical witness gave evidence on behalf of the claimant.[27]On this occasion Judge Holman was singularly unimpressed by the evidence of that witness, when he put it alongside the expert medical evidence and the other evidence he had received in the case. He found him to be unimpressive, and he said he was unable to rely on his evidence except to the extent that he had made concessions favourable to the claimant. One example Judge Holman gave was that although in a joint statement the witness had accepted that research reported in the medical literature had been carried out principally with volunteers sitting in an ideal position, and that injuries were affected by the positioning of the individual, the positioning of the head restraint, and the position of the head at the time of impact, he had failed to mention a number of other intrinsic and extrinsic factors which he was to acknowledge under cross-examination affected the risk of injury. These included an unawareness of the impending collision. As in Armstrong v First York the judge was to find that the claimant was trying to give him her honest recollection of events. He said in robust terms that she was not a fraudster advancing a claim which she knew to be false.[28]These two cases identify the contemporary dilemma in stark terms. A personal injuries claim which is only just above the small claims limit; an allegation by the defendant’s insurers, based on complex theorizing, to the effect that the claimant has set out to present a claim he/she knows to be false; and a reluctance on the part of the defendant’s insurers to accept that the court can do justice in relation to liability and causation simply by hearing the lay witnesses describe what happened in the accident and by considering written medical evidence about the simple injuries, the damage to the vehicles, and the claimant’s pre-accident medical state. How is such a case to be fairly tried in less than two days, with time available for the expert evidence to be put to the test by oral evidence and cross-examination?[29]The governing rules as to allocation in this context are set out in para 9.1(1) of the Practice Direction to CPR Part 26:
“(1) Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track. (2) The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary, and whether the trial is likely to last more than a day.”
[30]CPR 35.5 provides that expert evidence is to be given in a written report unless the court directs otherwise, and that if a claim is on the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.[31]In addition to the problems created by the court’s need to resolve issues of expert evidence, a further problem is created by the fact that it has become customary for a defendant not only to plead the facts on which he relies, but to add a positive allegation that the claimants has fabricated his/her claim or is otherwise guilty of fraudulent conduct in putting forward the claim and pursuing it to court.[32]All this against a background, freely accepted by counsel on both sides, that a distressing feature of contemporary England is a willingness on the part of many people to put forward bogus claims for damages of a kind which the defendant’s insurer cannot properly evaluate without recourse to the type of expert evidence that features in the present case. This court received a similar explanation of the insurers’ dilemma in Armstrong v First York Ltd (see the judgment of Brooke LJ at para 20).[33]In our judgment Judge Tetlow was right to overrule the district judge and to re-allocate the claim to the multi-track for the reasons he gave. Because she was under such pressure of time the district judge did not adequately address the question whether the case could be dealt with justly on the fast track, or consider whether because fraud was alleged it was necessary in the interests of justice for the experts to attend so that the trial judge could properly unravel the complexities that were inherent in their contested evidence. Nor did she consider issues relating to the desirability of equality of arms. Although it would have been very much better if an application had been made promptly pursuant to CPR 3.3(5)(a) for Deputy District Judge Hamlin’s order (made on paper) to be varied, circumstances had certainly altered since then because he had made his order on the basis of the parties’ answers to the original allocation questionnaire (served before Mr Newman’s report and the amended defence were available), and now both parties had altered their stance and were both contending that expert evidence must be called in order to deal justly with the amended defence case, so that a one day trial in the fast track would not achieve justice.[34]This analysis would be the same whether Dr Picardo or Mr Nee were the claimant’s expert witness. Each would have to be cross-examined, as would Mr Ralph. This was not a case which could be justly disposed of by “paper exercises and questioning” as the district judge supposed. By the very nature of the issues raised by the defence, the expert witnesses had to be called to give oral evidence if justice was to be done. Judge Tetlow was, in our judgment, right to express the views he did.[35]We have been told by counsel for the defendants that practitioners in different parts of the country are being faced with a vast difference of approach amongst different members of the judiciary, and that this inconsistency in approach is causing confusion and expense because the same points are being argued in every case with different results. A number of experienced trial judges understandably believe that these cases cannot be dealt with satisfactorily on the papers, although the form of the directions they make may depend on what they think of the cogency of the reports before them. In the last resort it must be for the judge with case management responsibilities in the particular case to decide what directions are appropriate. But it appears to us that until some of the issues that arise in these disputes have been authoritatively dissected and analysed at High Court level, it would not be wrong or disproportionate to allocate what would ordinarily be a fast track claim (by reason of its low value) into the multi-track on the grounds that the criteria for the admission of oral expert evidence are satisfied and the trial is therefore likely to last more than one day.[36]We hope that consideration may now be given by the designated civil judges on the Northern Circuit, in consultation with the appropriate presiding judge, to the possible value of grouping a number of these claims together before a High Court judge who has expertise in trying personal injuries litigation. At such a series of trials the judge might be able to hear a number of experts on each side of the argument and be able to give authoritative guidance on the appropriate approach to some of the generic issues that feature in these cases.[37]For instance, Mr Nee makes the following points in his report in the present case: i) Whiplash associated disorder is a well recognised consequence of low speed impacts, particularly when the claimant is a driver or front seat occupant, when there is no anticipation or bracing, and when the collision occurs from the rear; ii) Vehicle damage is not a good indicator of injury risk, because modern cars are equipped with bumper systems that will often prevent property damage at speeds well above the so-called threshold for harm; iii) Delta V (the estimated change of velocity in the struck vehicle) is only one factor implicated in injury risk, and the modern understanding of the kinematics of whiplash injury requires many other factors to be taken into account; iv) Many of the factors relevant to energy transfer are not available to “auto crash reconstructionists”, particularly when the only evidence that is available to them comes from a superficial examination of one or both vehicles some time after the event. The notion that an engineer can determine Delta V and injury risk in these circumstances is absurd; v) If the engineers are using a validated method to determine the Delta V, it is necessary to know the margin for error in the estimation and to have access to any peer-reviewed literature supporting this method of assessment as a valid means of determining Delta V in crashes in the real world; vi) The medical literature addressing the relationship between impact vehicle and injury risk needs to be carefully analysed because it appears to give conflicting messages; vii) In his opinion the examining medical expert must conduct a clinical examination of the claimant and obtain a detailed medical history from him, as well as reviewing associated documents. Mr Williams, who appeared for the claimant, also told us that factors like the comparative stiffness of the vehicles and the alignment of their bumpers may also come into play.[38]It is worrying to think that these issues are now being litigated on an individual basis at disproportionate expense in quite small claims up and down the country, and although a single judgment in a group of cases would not be able to resolve all the uncertainties it would surely be likely to furnish a more structured framework for judicial decision-making in this field than is available to district judges and circuit judges today.[39]Given that Mr Newman’s intervention elevated the gravity of what was being said in the defence, and Dr Picardo was understandably not well qualified to match his expectation and learning, Judge Tetlow was in our judgment entitled in these unusual circumstances to permit the claimant to call Mr Nee and to seek an expert engineer to match Mr Ralph, for the reasons he gave. Once he had overruled the district judge about the nature of the trial, the judge was entitled to give directions which would ensure that the parties were on a level playing field for that type of trial, as the overriding objective requires.[40]There is one final important point of practice we need to mention. In pre-CPR days the rules made it obligatory to plead the material facts a party relied on for his claim or his defence. These might include an allegation of fraud (see RSC O 18 r 7(1) and 8(1) and section 76 of the County Courts Act 1984). In the Practice Direction to CPR Part 16 specific reference is now made to the need for a claimant to set out any allegation of fraud in his particulars of claim (para 8.2), but the requirements for the contents of a defence are not reduced to that level of specificity (see para 10.1, cross-referring to CPR 16.5). Para 5.6.3 of the Queen’s Bench Guide, however, states:
“In addition to the matters listed in paragraph 10, full particulars of any allegation of dishonesty or malice and, where any inference of fraud or dishonesty is alleged, the basis on which the inference is alleged should also be included.”
[41]This practice should certainly be followed in the county court in cases where it is appropriate to do so. We were puzzled, however, by the practice that has started to emerge in low velocity impact litigation of requiring the defence to include a substantive allegation of fraud or fabrication. We were told that this practice probably flowed from a judgment given by Belinda Bucknall QC, sitting as a deputy high court judge in the Admiralty Court, in Cooper v P & O Stena Line Ltd [1999] 1 Lloyd’s Rep 734.[42]In that case the defence in an action arising from personal injuries sustained on board a ship consisted of a combination of a denial that there had been any accident at all, a plea of contributory negligence, an admission that the plaintiff had complained that he had hurt his back on the day in question, an assertion that the ship’s plate room floor was by its nature wet, and a denial that the floor was covered with water either to a depth of three inches or at all.[43]The defendant’s original medical expert (who was incapacitated by the time of trial) had said in his report that he believed that from a date three months after the incident the plaintiff had been fabricating his symptoms and disability, and distorting physical signs for his own ends. A direct quotation to this effect was then included in the defendant’s original reply to the plaintiff’s schedule of special damage. However, when the original expert had to drop out, the defendant’s new expert simply said that he agreed with his predecessor’s comments without reciting them, and the revised reply to the schedule of special damage (which was all that was placed before the judge) merely referred to the findings of the two medical experts without reciting what they were. In these circumstances the deputy

judge said (at p 736):

“The allegation is one of fraud. If it had been made good…[the plaintiff] would have been exposed to the possibility of criminal proceedings. Surprisingly, given the serious nature of the allegation, the body of the defence contained no pleading to support it.”
A little later she said:
“I do not consider it satisfactory that an allegation as serious as fraud, which is required by RSC O 18 r 8(1)(a) to be specifically pleaded, should be capable of ascertainment only by conducting a paper chase through the medical reports. … Counsel for the defendants told me that it is not the usual practice to plead malingering. If that is so, it seems to me that the usual practice is in disregard of O 18 r 1(a), which is itself a reflection of common justice. I asked for the defence to be pleaded and gave leave for the amendment”
[44]The amended defence in the present action was very different. Para 3 contained a substantive allegation that the incident occurred when the defendant’s vehicle was travelling at only a few miles per hour, with Mr Ralph’s report being referred to in this context. Para 4 contained a substantive allegation that Mr Newman (whose CV and assessment techniques are described) had reached the conclusions that are set out in para 7 above. These included his view that it was very unlikely that the claimant had suffered injury in the accident.[45]We cannot help thinking that if the defence in the Cooper case had been pleaded along those lines, coupled perhaps with a general traverse of the assertion that injuries were suffered, the deputy judge would have been satisfied that the defendants had satisfactorily pleaded the facts and matters on which they relied. There was no burden on them to prove fraud. It was sufficient that they set out fully the facts from which they would be inviting the judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted.[46]But no doubt because of what the deputy judge said in that case, and the views expressed by local circuit judges in reliance on that case, the amended defence in the present action continued along the following lines:
“5. In those circumstances, and guided by the opinions of Northern Assessors and Mr Newman, the defendant’s case is that the claimant is fabricating his symptoms and that no injuries were truly sustained by them. 6. Accordingly the claim for loss of earnings, prescription charges and miscellaneous expenses are not admitted and the claimant is put to strict proof.”
[47]We would add that in a discussion with counsel in Rooney v Graves (unreported, Liverpool County Court, 7th April 2004), of which we have been supplied with a transcript, Judge Stewart QC made a clear distinction between a case in which the defendant makes an allegation of dishonesty based on an expert’s report (which in his view entitles the claimant to get his own expert and to have a hearing, whatever the amount involved), and a case where the defendant disavows dishonesty and says that this was no part of his case at all. The judge added:
“I think we have got to make it absolutely clear to the Bar and to judges that ‘you are a liar’ is something that people are entitled to proper notice of because if that is alleged against them they are entitled, on the face of it, subject to the individual cases, to have expert evidence in support.”
In the context of the present appeal all we need say is that in our view, however strongly the defendants’ experts may believe that because of the theories they hold the accident could not have happened in such a way as to cause any injury, the defendant does not have to put forward a substantive case of fraud in order to succeed. In the present instance the defendant’s case was founded on the contentions in paras 3 and 4 of the amended defence, from which his representatives will be inviting the judge at the trial to conclude that the claimant has not proved what he has set out to prove and therefore to dismiss the action.[48]So long as a defendant follows the rules set out in CPR 16.5 (as this defendant did in those two paragraphs, for which see para 44 above) there is no need for a substantive plea of fraud or fabrication. All that is necessary is to make clear that an assertion along the lines of what is now para 6 is based on the assertions in paras 3 and 4. Of course, if the defendant’s medical examiner has examined the claimant and has concluded on the basis of the kind of thorough interview and clinical examination advocated by Mr Nee that there are substantive reasons for disbelieving his account, these reasons also need to be positively asserted.[49]If this guidance is followed, then comments like those of the deputy judge in Cooper about the possibility of criminal proceedings (see para 44 above) and of Judge Tetlow in the present case as to the possible consequences of a finding of fraud against a professional man (see para 16 above) will not be needed, because there is no substantive obligation on the defendant to plead fraud so long as his reasons for resisting the claim are clearly stated in accordance with CPR 16.5.[50]Finally, it seems appropriate to offer guidance about ways in which claims like this may be handled more economically in future. The pre-action protocol should be followed in all cases. We would also endorse the suggestion made by Mr Mark Turner QC that in cases of this kind when intimating a claim the claimant’s advisers should offer access to their client’s vehicle to the defendant’s insurers for the purpose of early examination (if they so wish), and give early disclosure (with irrelevant passages redacted, if necessary) of any contemporaneous GP’s or other relevant medical notes. This will enable the defendant’s insurers to get hold of relevant evidential material expeditiously and inexpensively, as the nature of these claims requires. In turn, it may be desirable for the defendant’s insurers to make it clear that they regard this as a low velocity impact case in which they will be seeking more expensive advice than the value of the claim would justify. We were told that it is customary to wait for up to nine months for such advice, and if they take this step at once (whether or not they ultimately decide to contest the claim along the lines of the amended defence in the present case) both parties will know where they stand at the outset.[51]It is of course open to the claimant to make an appropriate Part 36 offer of settlement as soon as the medical picture is clear. If it is refused, and the defendant’s insurers choose to proceed to an expensive trial, they will of course face the risk, if things go badly for them, of paying interest at an enhanced rate as well as indemnity costs (CPR 36.21(2) and (3).[52]These were the reasons why we dismissed the appeal.

Cited in 13 later judgments

and 4 more of the most senior