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Putting Claimants to Proof – Life after Kearsley
On 6th December 2005 the Court of Appeal gave its reasons for dismissing the appeal in the case of Alan Mark Kearsley v. Daniel Klarfield[1]. Any practitioner who has to settle a Defence wherein he wishes to ‘put a Claimant to proof’ needs to be familiar with this decision.
The Facts
This was a claim arising from a low impact rear-end shunt. Liability was not in dispute. The claim came before the Court on a second appeal. Permission had been granted because it raised a point of practice of general importance. The issues on appeal related to case management directions that had been made by a District Judge and then overturned on appeal by the Circuit Judge. The Circuit Judge had allowed the parties permission to re-allocate the claim to the multi-track, had permitted the Claimant to obtain further medico-legal evidence and had directed that the medico-legal experts give oral evidence at trial. The Defendant appealed this decision.
The Court of Appeal dismissed the appeal. It said that the issues raised in the case (there were opposing views from the medico-legal experts as to whether, given the low speed of the impact, the Claimant can have sustained the injury he complained of[2]) could not be justly disposed of “by paper exercises and questioning as the District Judge had supposed”. The Court of Appeal also said that it hoped that consideration would be given to the possible grouping together of a number of these low speed impact claims before a High Court judge with personal injuries expertise, so that authoritative guidance could be given on the appropriate approach to some of the generic issues that feature in these cases.
The Pleading Point
The Court of Appeal also gave guidance, albeit obiter, regarding the circumstances in which it was necessary to plead fraud in cases such as these. The author considers that this guidance is as applicable to, for example, highways claims, as it is to low-speed impact cases. It will be well-known that practitioners representing the interests of highway authorities are often confronted with situations in which the Claimant’s account of the accident and/or its mechanics do not ring true, but the absence of cogent evidence to substantiate the view that the injury was sustained elsewhere precludes a positive allegation of fraud.
It must always be borne in mind that pleading fraud is a very serious matter. Not only might it expose the Claimant to a criminal sanction[3], but the Codes of Conduct of both the Law Society and the Bar Council recognise the appropriateness of sanctions where an unfoundered fraud allegation is made by a practitioner. Similarly, the high evidential burden that is required to substantiate such an allegation, and the indemnity costs consequences of failing to make out such a claim, are all important factors which must be carefully considered before the allegation is made.
The judgment in Kearsley was timely, for it was the author’s experience that, on the back of cases such as Lawrenson v. Lawrenson & Red Star Equity[4], District Judges were often acceding to submissions (made on behalf of Claimants) that a Defendant highway authority could not seek to challenge the circumstances of an accident in the absence of an express pleading of fraud[5]. The argument usually proceeded along the lines that the Defence had merely put the Claimant to proof and therefore, come trial, by which time the Defendant had seen the Claimant’s A&E records, the Defendant was precluded – in the absence of the grant of permission for an amendment to plead fraud – from submitting that the accident occurred otherwise than as alleged by the Claimant. Such submissions were not only time-consuming to deal with (particularly within the time-constraints of a fast-track trial) but also – as already identified - exposed Defendant highway authorities, and their representatives, to various risks; most commonly, that of indemnity costs where the Claimant nevertheless succeeded in establishing factual causation.
Kearsley makes it clear that a Defendant is not required to plead fraud merely because it is desirous of challenging the Claimant’s version of events.
Of course, it is apparent (see paragraphs 40 and 41 of Kearsley) that where the Defendant intends to pursue a claim of dishonesty or malice, then fraud must be still be pleaded.
But, what then is required in the more frequently occurring situation where the cogent evidence required to plead fraud is not available to a Defendant, who nevertheless requires the Claimant to prove that the injuries were sustained in the circumstances alleged in the claim?
In Kearsley an Amended Defence had been submitted wherein, in combination with an express allegation of fabrication, there were identified the facts and matters that the Defendant would rely upon in support of its submission that the Claimant had not sustained the injuries complained of.
The Court of Appeal made it clear (see paragraph 45 of the judgment) that a Defendant who wished to invite a judge to draw an inference that the Claimant had not in fact suffered the injuries complained of was not required to plead fraud. It said that it was sufficient “that they set out fully the facts from which they would be inviting the judge to draw the inference …”. To this extent, it confirmed that the allegation of fabrication contained in the Amended Defence was not strictly speaking required in the circumstances of the case.
The Court of Appeal emphasised that what the Defendant must do was follow the rules set out in CPR 16.5. That provision provides that, inter alia:
(1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.
(2) Where the defendant denies an allegation –
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.”
Conclusions
The consequence of all this is that a practitioner who wishes to put a Claimant to proof may still do so. In his Defence he must identify the issue upon which the Claimant is being put to proof and state that he is unable to admit or deny this issue but requires the Claimant to prove it.
However, once the practitioner has evidence which he seeks to rely upon in support of his contention that the Claimant cannot prove that he suffered the injury complained of, he must plead the facts that he wishes to rely upon. This may require that he identify particular findings in the medico-legal report or inconsistent entries in the A&E records[6]. If he fails to do this he may be required to amend at trial (with potential costs consequences) or may be precluded altogether from putting this evidence to the Claimant in cross-examination[7]. However, once the material points are pleaded, he may rely upon them at trial, and he is not precluded from doing so simply because he does not feel able to go that one step further and allege that the claim is fraudulent.
Kearsley has clarified the position for practitioners and judges alike. The author awaits with interest further developments in this important and topical area.
Daniel Tobin
12 King’s Bench Walk
Temple, London
EC4Y 7EL
[1] [2005] EWCA Civ 1510.
[2] See the evidence described at paragraph 37 of the judgment.
[3] See, for example, the recent case of Caerphilly County Borough Council v. Hughes & Others, a decision of Silber J., dated 6th December 2005.
[4] A decision of HHJ Stewart, QC, sitting in Liverpool County Court, dated 12th July 2005.
[5] It should be emphasised that Lawrenson is not actually authority for this proposition – it was being cited – incorrectly - as such to, in the main, District Judges, who sometimes did not appreciate the finer technicalities of the decision.
[6] For a recent case upon the evidential value of such inconsistencies and the recommended approach for dealing with them, see the Court of Appeal decision in Denton Hall Legal Services v. Fifield [2006] EWCA Civ. 169.
[7] The author understands that it is the practice of some senior judges in Liverpool to preclude a Defendant from putting such inconsistencies if the Claimant has not be forewarned of them. See, for example, the comments at paragraph 43 of the decision of HHJ Stewart, QC in the above-mentioned case of Lawrenson.
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