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Low Velocity Impact Cases – Compliance with the guidance issued by the Court of Appeal in Casey v Cartwright

LOW VELOCITY IMPACT(LVI) CASES

Compliance with the guidance issued by the Court of Appeal in Casey v Cartwright

 Solicitors who deal with claims for personal injury and other losses are (or should be familiar) with the relevant guidelines issued by the Court of Appeal in Casey v Cartwright [2006] EWCA Civ 1280. For ease of reference, two of the relevant paragraphs (30 and 33) are set out in the schedule below.

  1. At case management stage, standard directions are given by the Court, timetabling the case to a case management conference, after consideration of the statements of case, AQs and the “Casey v Cartwright statement”.
  2. There has recently been a trend amongst solicitors acting for Claimants to argue at the case management conference that the case should not proceed in accordance with the Casey guidelines because notification of the LVI issue was either not given to the Claimant at all or outside the 3 month period suggested in  Casey.
  3. The Court is often unable to test this argument properly because the evidence placed before it is either lacking or deficient, principally because the “Casey v Cartwright statement” does not identify when by reference to the letter of claim or portal notification the issue of LVI was first raised.
  4. Accordingly, it is desirable that the Casey v Cartwright statement should identify, by reference to the letter of claim or portal notification, when the issue of LVI was first raised; if not the case management judge may not be satisfied that the process contemplated in Casey has been engaged and give the type of directions which are commonly given in road traffic claims which are allocated to the Fast Track.

  

Dated 31 August 2012

 HHJ Stewart QC

 

Schedule

 We think that it is desirable that, if a defendant wishes to raise the causation issue, he should satisfy certain formalities. In this way, the risk of confusion and delay to the proceedings should be minimised. Accordingly, where in a particular case a defendant wishes to raise the causation issue, he should notify all other parties in writing that he considers this to be a low impact case and that he intends to raise the causation issue. For the reasons set out at para.[33] below, he should do so within three months of receipt of the letter of claim. 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.

 33.  We believe that what we have just said reflects the tenor of the judgment in Kearsley . 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. They include the following. First, the timing of notification by the defendant that he intends to raise the causation issue. 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. The period of three months is consistent with para.2.11 of the Pre-Action Protocol for Personal Injury Claims which provides that a defendant be given 3 months to investigate and respond to a claim before proceedings are issued.

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