COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
HIS HONOUR JUDGE HOLMAN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LADY JUSTICE HALLETT
| Debbie Casey
|- and -
Mr D Allan QC, & Timothy Willitts (instructed by Messrs Brown Dunne & Cray) for the respondent
Hearing date: Wednesday 4th October 2006
Crown Copyright ©
Lord Justice Dyson: this is the judgment of the court.
"…..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?"
"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."
"8. …….The overwhelming majority of these claims for damages for personal injury are modest in value. Some judges have taken the view that it is disproportionate to have experts on both sides, be they engineers or doctors (or indeed both disciplines), arguing at substantial expense about whether the Claimant was injured or not. Initially it was a common feature for the defence to allege that the impact was such as to be "incapable" of causing injury, although more recently this appears to have been adjusted to "unlikely" to cause injury. Other judges (including me) took a different view, and Kearsley provides an example. Judge Tetlow allowed the Claimant's appeal, allocated the claim to the multi-track and gave consequential directions which included expert evidence on both sides. Given that it is not currently possible to proceed as envisaged by the Court of Appeal at paragraph 36, it is, in my view, appropriate to reconsider this approach in the light of experience to date.
9. The following features have emerged in addition to the personal injury claims being low value (typically £2000 or less):
i. They are fact sensitive. There is an abundance of variable factors. All that can safely be said at this stage is that there cannot be injury, unless there is vehicle occupant displacement, and that the lower the impact speed the less likely it is that injury will be sustained.
ii. The assessment of the lay witnesses by the trial judge has proved crucial.
iii. There have been problems with the expert reports, both engineering and medical: by way of example only, not addressing the range of opinion, and/or making no mention of the variables.
iv. The costs incurred in claims which have proceeded to trial have been very substantial. Figures up to £40000 have been mentioned. I have not personally seen a figure that high, but in Murphy v Sambells, for example, the defence estimate at pre-trial checklist stage was costs incurred to date of over £8000, and estimated costs to trial £15000."
"15. I am not persuaded that Mr Turner's interpretation of Kearsley is correct. I consider that you cannot divorce the final sentence in paragraph 35 from the previous sentence: "In the last resort it must be for the judge with case management responsibilities in the particular case to decide what directions are appropriate." In that context the final sentence becomes a demonstration of the principle enunciated by Brooke LJ in Tanfern v Cameron-Macdonald at paragraph 32. In case management there may be a variety of options open, any one of which may be a reasonable solution. I do not think, therefore, that it is right to elevate "not wrong" to "right".
16. I have more information available to me than was available to the Court of Appeal. Mr Turner referred to it as anecdotal. That is not entirely accurate, but in any event the essence of case management under the CPR is flexibility, and it would be unfortunate, to say the least, if the court could not take into account judicial experience. If that were not the case, there would be a real risk of putting case management into a straitjacket.
17. One must be wary of the "floodgates" type argument inherent in Mr Turner's reference to encouraging false claims. Without proper statistical evidence, considerable caution is required as regards the assertion that there are "many" claims, which require the sort of expert evidence which features in these cases. We are all used to dealing with claims which are alleged to be dishonest, but they take many guises – tripping claims, staged accidents, and genuine accidents where people claim to have been passengers are all examples………..
18. I have come to the conclusion, not without some hesitation since as I acknowledged earlier the scales are finely balanced, that on the basis of the current state of play I should revise the approach I have adopted in the past. Control by the court of the evidence is an integral part of the CPR. Rule 35.1 is in mandatory terms: "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings". CPR 32.1(1) gives explicit powers to control the evidence, and under 32.1(2) this can include the exclusion of admissible evidence. Some sort of split trial as suggested by Mr Willetts is, as I see it, inappropriate. The starting point should be that the issues of expense, expedition, proportionality and appropriate allocation of resources viewed in totality outweigh the equal footing criterion, and that accordingly the arena should not be opened up to further expert evidence. Allocation to the Fast Track then becomes appropriate. This reflects the point that these cases are fact sensitive. I have taken note of the honest comment in the position paper (and echoed in court by Mr Turner) that the courts may not have been best served by the quality of the experts. We shall see an example of this when I turn to this specific case. I noted also his reference to the production of persuasive reports. I bear in mind, also, the defence submission in Valins that the judge's assessment of the lay witnesses was likely to be determinative. I emphasise that this is only the starting point. There may well be cases where a defendant can demonstrate a good and proper basis to adduce expert evidence on the causation issue, and the court will have to react accordingly. "
The narrow issue
The wider issue