Does an ‘Are you making this up?’ hearing really help anyone?

Jack Waller, from our Head Office in London, questions both the value and fairness in the way courts are responding to insurance claims arising from ‘low velocity impacts’…

In recent years it has become more common in RTA claims for insurance companies representing the defendant to intimate a ‘low velocity impact’ defence. The claim is defended on the basis that the speed of the crash could not possibly have caused the claimant an injury. There is no allegation that the claim is dishonest. This defence is different from a defence of fraud where the allegation is that the claimant has made up or exaggerated his injury.

In view of the increasing awareness of fraud and exaggerated personal injury claims, some county courts are adapting their approaches to these claims.

Where a ‘low velocity impact’ defence is advanced, it is now standard practice at Bow County Court to require the claimant and defendant to attend a hearing in person before a district judge, where the consequences of false or exaggerated claims are explained. This is done before any evidence is presented before the court, and solely on the basis of the pleadings.

The rationale behind these hearings is presumably to weed out spurious claims and to lessen the burden on our over-stretched and under-funded justice system. There is concern, however, that these hearings will cause legitimate claimants to feel under suspicion, resulting in honest claims being discontinued. In contrast, fraudulent claimants will be able to take on board the warning and avoid the consequences of their actions by discontinuing claims at an early stage.

It is difficult to see how these hearings will lessen the court’s workload. However, there is no reason why a well-worded direction from the district judge should result in honest claims being discontinued.

The only certainty is that the hearings will cause inconvenience to both the claimant and defendant, particularly to those with childcare obligations or who work in low-paid jobs.

And it is likely that some claimants will be left with the feeling that they have been called to court to be asked the simple questions “are you making this up?”