Allegations of fraud

Kearsley v Klarfeld CA LSG 12 January

The practice that has emerged in personal injury claims in low-velocity impact litigation of requiring the defence to include a substantive allegation of fraud or fabrication is not necessary. It is 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 is no burden on the defence to prove fraud and the defendant does not have to put forward a substantive case of fraud to succeed so long as he follows the rules in CPR rule 16.5. The claimant’s advisers should offer the defendant’s insurer access to the claimant’s vehicle for the purpose of early examination and give early disclosure of any contemporaneous GP’s or other relevant medical notes to enable the defendant’s insurer to obtain relevant evidential material expeditiously and inexpensively. In turn, it might be desirable for the defendant’s insurer to state at an early stage that it regards the claim as a low-velocity impact case in which it would be seeking more expensive advice than the claim would justify. In the present case, the district judge had been wrong to reject the request of both parties that the case be reallocated from the fast-track to the multi-track with an estimate of two days for the trial on the basis that the allegation of fraud was serious and could only properly be dealt with by the parties calling their expert evidence. Because of the allegation, it was necessary in the interest of justice for the experts to attend, so that the judge could unravel their contested evidence. In refusing to allow the claimant to substitute an orthopaedic expert for his GP, the district judge had failed to consider the desirability of equality of arms. Both parties had altered their stance since the original directions were made, so that a one-day trial in the fast-track would not achieve justice. The GP was not well qualified to match the defendant’s orthopaedic expert and it was necessary to ensure that the parties were on a level playing field.