23 December 2010 - PI Practitioner

Armstrong and anor v First York [2005] EWCA Civ 277

The Court of Appeal held that there was no principle of law that an expert’s evidence in an unusual field must be dispositive of the issue of liability such that a judge must be compelled to find that two palpably honest witnesses had come to court to deceive him in order to obtain damages. Where there was such a conflict of evidence it was for the judge to determine which was most plausible.

Kearsley v Klarfeld [2005] EWCA Civ 1510

Case management issues are for the judge with case management responsibility to deal with and to decide what directions are appropriate. However, the court did not consider it disproportionate in the circumstances that a fast track value case was allocated to the multi track because oral expert evidence was required at trial and so the matter would last more than one day. The court also set out a desirable process to be followed in low velocity impact cases (LVIs).:

The pre-action protocol should be followed. The claimant’s advisors should offer access to the claimant’s vehicle for examination and give early disclosure of relevant GP/medical notes to allow the defendant to get hold of relevant material relatively inexpensively and expeditiously.

In turn the defendant insurer should make clear that they regard the matter as an LVI and that they will in those circumstances be seeking more expensive advice than the case would otherwise normally justify.

Casey v Cartwright [2006] EWCA Civ 1280

Building on Kearsley above, the Court of Appeal set out guidance regarding the grant of permission to adduce expert evidence in LVI cases.

1. Where a defendant wishes to raise the issue of causation, he should write to all other parties within 3 months of receipt of the letter of claim, and notify them that he considers the case to be an LVI and that he intends to raise the causation issue. The issue should be expressly identified in the defence, supported in the usual way by a statement of truth. Within 21 days of serving a defence raising the causation issue, the defendant should serve on the court and the other parties a witness statement which clearly identifies the grounds on which the issue is raised. Such a witness statement would be expected to deal with the defendant’s evidence relating to the issue, including the circumstances of the impact and any resultant damage.

2. Upon receipt of the witness statement, the court will, if satisfied that the issue has been properly identified and raised, generally give permission for the claimant to be examined by a medical expert nominated by the defendant.

3. If upon receipt of any medical evidence served by the defendant following such examination, the court is satisfied on the entirety of the evidence submitted by the defendant that he has properly identified a case on the causation issue which has a real prospect of success, then the court will generally give the defendant permission to rely on such evidence at trial. There will, however, be circumstances where the judge decides that, even though the evidence submitted by the defendant shows that his case on the causation issue has real prospects of success, the overriding objective nevertheless requires permission for expert evidence to be refused. It is not possible or desirable to produce an exhaustive list of such circumstances, but they include the following:

(i) Unless the defendant notifies the claimant of his intention to raise the issue within three months of receipt of the letter of claim, permission to rely on expert evidence should usually be denied to the defendant. It is important that the issue be raised at an early stage so as to avoid causing delay to the prosecution of the proceedings;

(ii) if there is a factual dispute the resolution of which one way or the other is likely to resolve the causation issue, that is a factor which militates against the granting of permission to rely on expert evidence on the causation issue. In such a case, expert evidence is likely to serve little or no purpose; and,

(iii) where the injury alleged and the damages claimed are so small and the nature of the expert evidence that the defendant wishes to adduce so extensive and complex that considerations of proportionality demand that permission to rely on the evidence should be refused.

Finally, regarding single joint experts, the Court stated that, whilst they have an invaluable role to play in litigation generally, especially in low value litigation, judges should be slow to direct that expert evidence on the causation issue be given by a single joint expert, since the causation issue is controversial.