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Whiplash and fraudulent claims

The justice secretary spoke to the Association of British Insurers yesterday telling them about the new panels of medical experts in whiplash claims, reported The Times today. The government’s plans for such panels have long been known about but he announced that accredited experts would be allocated randomly to cases going through the Portal. He said there was an expectation that there would be one report per case. Experts who are not accredited by April 2015 will be barred from providing reports in whiplash claims.

The difficulty of experts in personal injury cases providing reports which please/suit the party instructing is a long standing problem. The danger is that experts on these panels will decide the outcome of cases and that the courts will make it difficult to challenge their conclusions. If a panel expert finds that a claimant has not suffered any injury and the claimant obtains his own report which says the opposite, how receptive will courts be to an application to adduce evidence from the claimant’s expert? If there is an expectation of one expert per case, such an application may well not succeed.

Mr Grayling is also reported to have said that new rules were to be introduced so that claims could be dismissed in their entirety if the courts were satisfied that claimants had been fundamentally dishonest. This may be aimed at the Supreme Court decision in Summers v Fairclough Housing Limited [2012] 1W.L.R. 2004 in which a claimant was found to have fraudulently misstated his case as worth £800,000 but was awarded £88,000. The Supreme Court held that it had an inherent jurisdiction to strike out such claims but that the jurisdiction was to be used exceptionally. It would be interesting to know whether Mr Grayling had this decision in mind.


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