Date:  20 November 2006

WHERE NOW FOR LOW VELOCITY IMPACT CLAIMS?

The recent Court of Appeal decision in Casey v Cartwright has received widespread coverage. All insurers and solicitors should now be aware of the guidance given by the Court of Appeal as to how these claims should be conducted. Defendants will have to give early notification that they intend to raise a causation issue.  They will have to serve a statement 21 days after the defence is filed.

Despite the guidance from the court (and numerous articles in the legal press), there are still some significant issues to consider.

Who should make the statement? 

This statement will have to set out the reasons for raising causation.  It will have to be filed 21 days after the defence. Will this unilateral disclosure create an advantage for the Claimant?

In my view, the only proper person to make that statement is the defendant’s solicitor. I think this is what the court had in mind.  Since the time for filing is after the defence, the solicitor will of course be involved by that stage.

I suggest it will be appropriate for the Solicitor, rather than the defendant, to deal with a legal issue such as causation.

Moreover, although the statement will recite the defendant’s version of the collision, the facts can be kept simple and straightforward - “there was a collision. One party was stationary. The other was moving off from stationary.”

This is unlikely to be controversial, and unlikely to prejudice the defendant’s case by revealing too much evidence about the mechanics of the impact.

This is only one of the areas which are not specifically addressed in the judgment. This made it clear that the guidance given was no more than that: guidance, not rules. Test cases are very necessary to resolve some of the issues around this very current topic. In the meantime, if you have any queries about any of the issues raised by the judgment, I would be only too happy to help.

Rob Delaney