DO NOT PASS GO DO NOT COLLECT $200 PERSONAL INJURY PLEADINGS IN ROAD TRAFFIC ACCIDENTS

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1 DO NOT PASS GO DO NOT COLLECT $200 PERSONAL INJURY PLEADINGS IN ROAD TRAFFIC ACCIDENTS BY: MR NADIM BASHIR NEW PARK COURT CHAMBERS LEEDS LSI 2SJ TEL:

2 1. Introduction If there was any doubt as to the essential role played by pleadings, not just personal injury pleadings, it was resolved by the case of Al- Medenni v Mars UK Ltd [2005] EWCA Civ 1041 where the Court of Appeal allowed the Defendants appeal from a judgement in favour of their employee who had been injured at work. The judge at first instance had found for the Claimant on a basis which had not been pleaded. Dyson LJ with whom Brooke and Tuckey LJJ agreed said, it is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation.the starting point must always be the pleadings 2. The Interim Report by Lord Woolf MR The purpose of pleadings under the Civil Procedure Rules 1998 was said to have an important role in the proposed new procedure. That role was and is to set out the facts relied upon, so that the Court and the parties can ascertain what the case is about, and the court can take the appropriate decisions about its management. In particular, defences came in for particular criticism for pleading them in a way which were deliberately framed and kept all the options open for as long as possible and the frequent failure to plead some factual basis which was intended to be advanced at trial but which was never pleaded. 2

3 3. General Principles when pleading Claims, Defences and Replies a) the pleadings should be: written in plain English avoid the use of over technical and flowery language so that the pleading is accessible. Follow a paragraphed and chronological presentation. Concise If over 25 pages long, a short summary of the pleading should be filed and served. Complete the Particulars of Claim needs to be a comprehensive statement of the claim being advanced including all the allegations both at common law and under statute, to include particulars of personal injury and schedule of special damages; the Defence needs to be a comprehensive response to the Particulars of Claim, clearly identifying what is admitted, what is denied and what you are unable to admit or deny. A simple denial will not suffice. You must provide reasons. See CPR 1998 Rule 16.5 and CPR PD 16. Factual Make a clear statement of factual allegations; don t be evasive about the nature of the Claim or the Defence. Failure to plead an allegation may well be fatal to the success of the claim. Failure to deal with an allegation in a Defence has the consequence that the allegation is taken to be admitted, there are some exceptions to this rule contained in CPR 1998 Rule 16.5 but it is not desirable to take this risk. Verified pleadings must always contain a statement of truth; b) Plead all the matters upon which you rely: Do so in a way which demands a response to the allegation in a Defence and in turn, draft your Defence in a way which demands a Reply in separate identifiable numbered paragraphs so that you know at the earliest opportunity the 3

4 case being advanced and the case you ultimately have to meet; If no Reply seems to be forthcoming, demand one so as to give proper focus to the CMC hearing; If still no Reply is forthcoming, then consider asking one at the CMC hearing itself and then requesting a further CMC hearing; If the Defence is inadequate or could be made more clear, ask for that to be done at the CMC hearing; c) Always re-visit your pleadings. You never know, you may want to amend it! 4. Civil Procedure Rules 1998 CPR Rule 16.5 CPR 1998 Rule 16.4 deals with the contents of a Particulars of Claim what must be included: (1) Particulars of Claim must include- A concise statement of the facts on which the Claimant relies; The claim for interest; Aggravated/Exemplary damages if these are being claimed; Such other matters as are required by the PD 16; CPR 1998 Rule 16.5 deals with the contents of a Defence what must be included: (1) In his defence, the defendant must state- Which of the allegations in the particulars he denies; Which allegations he is unable to admit or deny, but which he requires the Claimant to prove; Which allegations he admits; 4

5 (2) Where the Defendant denies an allegation- He must state his reasons for doing so; and If he intends to put forward a different version of events from that given by the Claimant, he must state his own version; (3) A Defendant who- Fails to deal with an allegation; but Has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant, shall be taken to require that allegation be proved; (4) Where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation; (5) Subject to paragraphs (3) and (4), a Defendant who fails to deal with an allegation shall be taken to admit that allegation; (6) If the Defendant disputes the Claimants statement of value under CPR 1998 Rule 16.3 he must- (a) state why he disputes it; and (b) if he is able, give his own statement of the value of the claim; (7) If the Defendant is defending in a representative capacity, he must state what that capacity is; (8) If the Defendant has not filed an acknowledgement of service under Part 10, he must give an address for service. 5

6 5. Civil Procedure Rules 1998 CPR Practise Direction 16 Matters which must be included in the Particulars of Claim in personal injury claims: (1) Claimants date of birth; (2) Brief details of the Claimants personal injury; (3) A Schedule of Loss and damage must be attached; (4) A Medical Report must be attached; A Claimant must specifically set out the following matters in his Particulars of Claim where he wishes to rely on them in support of his claim: (1) Any allegation of fraud; (2) The fact of any illegality; (3) Details of any misrepresentation; (4) Details of all breaches of trust; (5) Notice or knowledge of a fact; (6) Details of unsoundness of mind or undue influence; (7) Details of wilful default; (8) Any facts relating to mitigation of loss or damage Matters which must be included in the defence in personal injury claims: Where the claim is for personal injuries and the Claimant has attached a medical report in respect of his alleged injuries, the Defendant should: (1) State in his defence whether he (a) Agrees (b) Disputes, or (c) Neither agrees nor disputes but has no knowledge of 6

7 the matters contained in the medical report; (2) Where he disputes any part of the medical report, give in his defence his reasons for doing so; and (3) Where he has obtained his own medical report on which he intends to rely, attach it to his defence. Where the claim is for personal injuries and the Claimant has included a schedule of past and future expenses and losses, the Defendant should include in or attach to his defence a counterschedule stating: (1) Which of those items he- (a) Agrees (b) Disputes, or (c) Neither agrees nor disputes but has no knowledge of; and (2) where any items are disputed, supplying alternative figures where appropriate. Other matters The defendant must give details of the expiry of any relevant limitation period relied upon A party may: (1) refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based; (2) give in his statement of case the name of any witness he proposes to call; and (3) attach to or serve with his statement of case a copy of any document which he considers necessary to his claim or defence, as the case may be (including any expert s report to be filed in accordance with CPR 1998 Part 35). 7

8 6. Positive Assertions in the Defence On liability (a) Contributory negligence; (b) Volenti non fit injuria; (c) Act of stranger or third party; (d) Limitation of action; (e) Low Velocity Impact collision (Casey v Cartwright defence); (f) The taking of all reasonable care; (g) Any statutory defence; (h) Fraud. Fraud The requirements for pleading fraud are more stringent, and require a higher degree of specificity and clarity. The classic statement of principle in Day v Garrett (1878) 7 ChD 473 at 489 per Thesiger L.J. was Fraudulent conduct must be distinctly alleged and distinctly proved, and it [is] not allowable to leave fraud to be inferred from the facts. When considering whether to plead fraud, regard should be had to the material available, the requirements of the pleaders code of conduct, the CPR 1998 (especially Part 16), the standard of proof which will be required at trial and for claims in the Chancery or Commercial divisions the requirements of the relevant Guide. Following the decision of the House of Lords in Metcalf v Mardell [2002] 3 W.L.R 172 the requirement is that a pleader have before him reasonably credible material and not reasonably credible evidence in order to be able to plead fraud. The specific requirements for pleading fraud are that a defendant must set out all the allegations of fraud, details of any misrepresentation, breaches of trust, notice or knowledge of the facts relied upon. Those instructing Counsel should be mindful of Counsel s obligations under the Bar Standards Code of Conduct. Rule 704(c) provides that a 8

9 Barrister cannot draft any statement of case which contains any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud. Low Velocity Impact The case of Casey v Cartwright [2006] EWCA Civ 1280 and the judgement of Dyson L.J. at paragraph must be followed by defendants. On Quantum (a) Steps which it is alleged the Claimant should have taken but did not, which amount to unreasonable failure to mitigate his loss; (b) Symptoms and disabilities were not caused or contributed to by the accident, but by the progression of a pre-existing degenerative condition or a condition of constitutional or genetic origin; (c) The Claimant was not disabled to the extent alleged in the medical report, but rather he or she was fit to engage on that date, and on dates thereafter, in normal work, which work he or she undertook or ought to have undertaken; (d) Exaggeration; (e) Fraud. Failure to plead such defences on liability and quantum will probably be fatal to the defendant s prospects of being permitted to adduce evidence in support of such positive defences. 9

10 7. Conclusion The above principles apply in general to statements of case. It has been seen that their main purpose as a tool in litigation is to define the issues concisely at as early stage in the proceedings as possible the reforms introduced by the Civil Procedure Rules 1998 contain a powerful message to that effect. It is important that the letter and the spirit of rules are observed in this respect, otherwise old practices will slip back into use, and the problems which Lord Woolf set out to address will recur. Dated the 18 th September 2012 Mr Nadim Bashir 10

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