Kearsley v Klarfield
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 06 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1510 |
| Docket Number | Case No: B3/2005/0654 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2005 |
[2005] EWCA Civ 1510
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
Judge Tetlow
District Judge Stephens
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
(Vice-President, Court of Appeal, Civil Division)
Lord Justice Dyson and
Lord Justice Carnwath
Case No: B3/2005/0654
Mark Turner QC & Paul Higgins (instructed by Horwich Farrelly) for the Appellant
Benjamin Williams (instructed by Coyne Learmonth) for the Respondent
This is the judgment of the court.
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 10 th March 2005 whereby he allowed an appeal by the claimant from an order made by District Judge Stephens in the same court on 21 st 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.
The claimant's accident occurred on 22 nd 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 28 th 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 6 th August the claimant's solicitors asked for Mr Newman's CV. On 19 th 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 20 thAugust they went ahead unilaterally and instructed Dr Picardo.
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.
On 5 th 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.
His solicitors sent his report to the defendant's insurers on 8 th October. On 26 th 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.
On 1 st 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 5 th 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 10 th 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.
On 9 th 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.
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.
On 22 nd 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 19 th November, and a trial window in February 2005 was set for the trial. This order was sealed and issued on 28 th July.
Instead of asking a district judge to reconsider this order, on 2 nd 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.
On 8 th 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.
On 15 th 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 2 nd 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.
On 11 th 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 16 th 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 21 st 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.
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.
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...
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