Defence does not have to plead fraud in low velocity impact cases

The Court of Appeal recently looked at practice and procedure issues involving the growing number of low velocity impact RTA cases.


In one case, the claimant alleged that he had suffered a soft tissue whiplash injury when his car and the defendant’s car were stationary but the defendant’s foot slipped off the clutch causing his car to hit the claimant’s car. He relied on a report from the GP. The defendants relied on expert evidence from a consultant orthopaedic surgeon and from an expert engineer that such injury could not have been sustained following such a low velocity impact. The defendant’s case was that the claimant was making a fraudulent claim and put him to strict proof.

The case was allocated to the fast track with a one day estimate, but both parties sought allocation to the multi track and a new estimate of two days on the basis that an allegation of fraud was serious and could only be properly dealt with by the parties calling their expert evidence. The District Judge rejected the application but on appeal the judge allowed it. The Court of Appeal held that the judge was correct to overrule the District Judge and to reallocate the claim to the multi track on the basis that an allegation of fraud was a matter to be taken seriously. It was necessary in the interests of justice for the experts to attend so that the judge could unravel their contested evidence.

The court went on to say that a practice that had emerged in low velocity impact litigation, of requiring the defence to include a substantive allegation of fraud or fabrication, was not necessary. It was sufficient to set out fully any facts from which the defence would be inviting the judge to draw the inference that the claimant had not in fact suffered the injuries he asserted. There was no burden on the defence to prove fraud and the defendant did not have to put forward a substantive case of fraud in order to succeed, so long as he followed the Rules in CPR 16.5. The court further held that, in these type of cases, the claimant’s advisors should offer the defendant’s insurers access to the claimant’s vehicle for the purpose of early examination and to give early disclosure of any contemporaneous GP or other relevant medical notes so the insurers could obtain relevant evidential material expeditiously and inexpensively. It might be desirable also for the insurers to state at an early stage that they regard the claim as a low velocity impact case in which they would be seeking more expensive advice than the claim would normally justify.

Kearsley -v- Klarfeld. Court of Appeal 6 December 2005