ALLOCATION ISSUES FOR LOW VELOCITY IMPACT AND FRAUD ROAD TRAFFIC CASES

 mark_henley_ By Mark Henley

  1. The allocation of low velocity or fraud road traffic cases has become increasingly important to Claimants’ solicitors since the introduction of “fixed” fast track costs for road traffic accidents occurring after 31.7.13.
  1. Before that, such cases involved significant risks of failing, but were potentially highly profitable even on the fast track: but when only fixed costs are recoverable on the fast track it can be difficult to make such complex cases profitable at all, even if they are successful, particularly when Defendants’ insurers continue to make repeated requests for disclosure and Answers to Part 19 questions which are expensive to respond to.
  1. The principles for allocation are stated by CPR 6, as follows:

“(4)    Subject to paragraph (5), the fast track is the normal track for any claim –

(a)      For which the small claims track is not the normal track; and

(b)     Which has a value –

(i)      For proceedings issued on or after 6th April 2009, of not more than £25,000…

(5)      The fast track is the normal track for the claims referred to in paragraph 4 only if the court considers that -:

(a)      The trial is likely to last for no longer than 1 day; and

(b)     All expert evidence at trial will be limited to –

(i)      One expert per party in relation to any expert field; and

(ii)     Expert evidence in 2 expert fields.

(6)      The multi-track is the normal track for all claims for which the small claims track or the fast track is not the normal track.”

  1. Further guidance is given by the Practice Direction to CPR Part 36: especially 26PD9.1, on fast track allocation, which provides that a day’s hearing is to be taken as 5 hours, and that the court’s powers to control evidence and cross-examination must be taken into account, and that, “the possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track”.
  1. In the light of the above the following is a useful “checklist” as to whether it is probable that a road traffic case in which low velocity/ fraud issues are raised should be allocated to the multi-track:

(a)      Is the value more than £25,000? Low velocity claims will rarely exceed this value (although this is not necessarily true of accidents alleged to be fraudulent in the sense that they have been “staged”, and never occurred as pleaded): but it is worth checking the claim value (and in particular the value of any claim for credit hire, and/or whether there is a claim for general damages for handicap on the open labour market, and/or whether a substantial future loss of earnings claim can be made, for example on the basis of a “multiplier/ multiplicand” calculation based on the assertion that the Claimant is “disabled” within the meaning of the Ogden Tables Definition).

(b)     Will expert evidence exceed 2 experts giving oral evidence and/or 2 expert fields in total?  If a Defendant is seeking permission to rely on both its own medical evidence and its own engineering evidence, then, in the absence of agreement, oral evidence will be needed from 4 experts, requiring multi-track allocation.  If there is expert evidence from Psychiatric Medical Experts and from Orthopaedic Medical Experts and from Engineering Experts, then there will be expert evidence in more than “2 expert fields”, again requiring allocation to the multi-track (irrespective of whether any oral evidence will be needed).

(c)      In any event, will the trial probably exceed a time estimate of 1 day? (Which is a question which I address in more detail below).

  1. Allocation is a matter for the discretion of the court and practice varies from court to court.
  1. Generally, the guidance given by the Court of Appeal in Kearsley v Klarfield [2005] EWCA Civ 1510 emphasises that where allegations are made going to the honesty of the Claimant sufficient court time to test all of the oral evidence should be allowed: where an allegation is made that the Claimant is alleging an injury which he knows is not genuine, the court should ask, “how is such a case to be fairly tried in less than 2 days, with the time available for the expert evidence to be put to the test by oral evidence and cross examination”.
  1. Where allegations of fundamental dishonesty are raised it can be argued that these will require lengthy cross examination, which will add to the trial length.
  1. Consideration should also be given to matters affecting trial length such:
  • the number of witnesses;
  • whether any witnesses require interpreters;
  • the complexity of the issues (for example whether there are issues of credit hire, which will add to the time necessary to deal with the Claimant’s evidence);
  • the time necessary for any oral evidence from, and cross examination of, experts (even if these are confined to 2 fields and to 1 expert per party).
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3 comments

  1. […] Mark Henley writes on Allocation issues for low velocity impact and fraud road traffic cases. […]

  2. […] Mark Henley considered Allocation Issues for Low Velocity Impact and Fraud Road Traffic Cases  […]

  3. […] Henley considered Allocation Issues for Low Velocity Impact and Fraud Road Traffic Cases  (July […]

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