Kearsley v Klarfeld

A low-value personal injury claim should ordinarily remain on the fast track. It may, however, be allocated to the multi-track where contested expert evidence and a trial exceeding one day are necessary to determine it justly.

A defendant who disputes whether injury occurred need not plead fraud or fabrication. Compliance with the defence requirements in the Civil Procedure Rules 1998 is sufficient where the defendant clearly pleads the material facts and expert conclusions from which the court is invited to find that injury has not been proved. Any substantive reasons for disbelieving the claimant must be stated positively.

The claimant sought damages for a whiplash injury allegedly sustained when the defendant's vehicle struck his from behind at low speed. Liability for the collision was accepted, but causation was disputed. The defence relied on engineering and medical opinions and alleged that the claimant had fabricated his symptoms.

A deputy district judge allocated the claim to the fast track and permitted written expert evidence. District Judge Stephens subsequently refused reallocation and additional expert evidence. Judge Tetlow allowed the claimant's appeal, reallocated the claim to the multi-track and permitted further medical and engineering evidence.

The defendant brought a second appeal. The central issues were whether the claim could be dealt with justly on the fast track, whether oral and additional expert evidence was necessary, and whether a defendant disputing injury must plead fraud expressly.

1. Appeal dismissed. Judge Tetlow was right to set aside the district judge's case-management decision, reallocate the claim to the multi-track and permit further expert evidence.

2. Under paragraph 9.1 of the Practice Direction to Part 26 of the Civil Procedure Rules 1998, a claim whose normal track is the fast track should remain there unless it cannot be dealt with justly on that track. Relevant considerations include the necessary extent of expert evidence and whether the trial is likely to exceed one day. Rule 35.5 permits oral expert evidence in a fast-track claim where it is necessary in the interests of justice.

3. The district judge had not adequately addressed whether the claim could be tried justly on the fast track. The amended defence raised complex and contested medical and engineering evidence. Both sides had come to contend that experts should be called. Oral examination and cross-examination were necessary to unravel those disputes, and a one-day trial based on written material would not achieve justice. The altered circumstances also justified revisiting the earlier paper directions, although an earlier application under rule 3.3(5)(a) would have been preferable.

4. Once the case was properly treated as requiring a multi-track trial, the judge could permit the claimant to replace his general practitioner expert with a specialist and obtain engineering evidence. Those directions secured equality of arms. The appropriate directions in any individual case remain a matter for the judge responsible for case management.

5. A defendant need not plead a substantive allegation of fraud or fabrication merely to contend that the claimant has failed to prove injury. It is sufficient to comply with rule 16.5 by pleading fully the facts and expert conclusions from which the judge will be invited to draw that inference. If a medical examination produces substantive reasons for disbelieving the claimant, those reasons must also be asserted positively.

1. Court of Appeal (Civil Division): The defendant's second appeal was dismissed. Judge Tetlow's reallocation and expert-evidence directions remained effective: [2005] EWCA Civ 1510.

2. Manchester County Court, Judge Tetlow: The claimant's appeal was allowed. The claim was reallocated to the multi-track, and further medical and engineering evidence was permitted.

3. Manchester County Court, District Judge Stephens: The claimant's application for reallocation and replacement medical evidence was refused. Directions were given for the existing medical experts to confer.

4. Manchester County Court, Deputy District Judge Hamlin: The claim was initially allocated to the fast track, with permission for the parties to rely on written expert reports.