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Overwhelming evidence leads to admission of fundamental dishonesty

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By Claire Laver, Rhys Pousette, Jemma Lewis & Caroline Bigos

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Published 09 October 2023

Overview

For those operating in the counter-fraud arena, it is no surprise to see claimants who, despite making protestations of continuing effects of injuries and ongoing disabilities, keep making social media posts demonstrating a life wholly at odds with what is alleged in their claim.

However, in the case of Rokheeb Usman v Zubair Iqbal and Royal & Sun Alliance Insurance Plc before the County Court in Burnley, in which Rhys Pousette of DAC Beachcroft was instructed to represent the defendants, the extent of the claimant's inconsistent behaviours took this to the extreme.

Background

The claimant, a self-professed social media influencer, was the passenger in a vehicle driven by the first defendant (D1) (insured by the second defendant, "RSA") when D1 lost control of the vehicle in wet weather causing it to spin and collide with the central reservation. The impact was not insignificant with airbags being deployed and the vehicle being written off. Breach of duty on the part of D1 was admitted.

The claim

In the Particulars of Claim, it was averred that "The claimant sustained injury to his neck, shoulder, lower back, both legs and ribs" and that "he also had ringing in his ears as well post-traumatic stress disorder." The full details of the claimant's injuries were detailed within the medical reports of Dr. Uzma Qureshi, Mr Mohammed Shahid (Consultant Orthopaedic Surgeon), Mr N A Khan (Consultant ENT Surgeon), Mr Mathew Akai (Consultant Clinical Psychologist) and Mr Mahesh Bapuram (Physiotherapist). The Particulars of Claim, which the claimant had verified by way of a statement of truth, claimed "damages in excess of £10,000.00 but not expected to be more than £20,000.00" together with interest and costs.

The concerns and the investigation

While there is no doubt that tinnitus can arise in the context of a road traffic accident, there is a widely held perception that incidences of the condition being claimed has increased over recent years and it was the claimant's assertion that he had suffered from tinnitus. The absence of any record of tinnitus in the contemporaneous medical records was what first alerted RSA to the possibility that all was not as it should be and DAC Beachcroft was instructed to represent it and D1.

Working closely with RSA to develop and agree an appropriate strategy, DAC Beachcroft's lawyers and intelligence professionals undertook a detailed investigation which identified a number of matters suggestive of fundamental dishonesty being present, in respect of the injuries that the claimant alleged that he had sustained and their effects.

The evidence was considered so overwhelming that the decision was made to seek leave to amend the defence to plead fundamental dishonesty.

The application and the evidence

The draft amended defence, which formed the subject of the defendant's application, identified a number of areas in respect of which the claimant's medical and other evidence was disputed, in particular that he had sustained:

  • Injuries to his neck, back, shoulder, ribs and legs;
  • A head injury;
  • Tinnitus; and
  • Psychological injury in the form of post-traumatic stress disorder lasting for 22 months.

In addition to these inconsistencies, the evidence was obtained identifying 48 instances of social media posts of video footage showing the claimant, which were inconsistent with the claimant's alleged conditions including:

  • Being on a sky diving swing;
  • Enjoying a rollercoaster;
  • Carrying, walking, moving and getting up and down freely and unaided;
  • Dancing;
  • Punching a boxing arcade machine;
  • Travelling in vehicles;
  • Travelling abroad to Pakistan, Lebanon and Turkey; and
  • Riding a scooter.

In an attempt to explain away the inconsistencies between his pleaded claim and the video footage, he said it was necessary for him to continue to make fresh posts and, while material may have been posted after the accident, it was in many cases unused material created before the accident occurred. The claimant was invited to produce the original recordings so that the metadata which would confirm the date of creation could be investigated, but he did not do so.

The hearing and the court's order

The trial came before His Honour Judge Khan on the 6th September, the defendants being represented at the hearing by Alex Poole of Deans Court Chambers.

Whatever discussions took place between the claimant and his counsel are not known, but it is evident from the order consented to that the overwhelming nature of the evidence against him and the inevitability of the outcome ultimately led to an admission of fundamental dishonesty.

The order made by the judge specifically records that "the claimant accepts that his claim for personal injuries is exaggerated and/or fabricated to the extent that it is fundamentally dishonest for the purposes of CPR 44.16 (1) and S. 57 Criminal Justice and Courts Act 2015." The judge dismissed the claim and the claimant was ordered to pay costs in the sum of £10,000.

Lessons to be learnt

This case demonstrates that with diligence and an appropriate case management strategy developed between insurers and their lawyers, and the deployment of specialist counter-fraud and intelligence resources, excellent results can be achieved. In this case, such a wealth of evidence of the claimant's dishonesty was uncovered that he was forced to bow to the inevitable and concede that the court should made a finding of fundamental dishonesty, and make a significant award of costs against him.

Commenting on the outcome, Adele Sumner, Head of Counter Fraud at RSA Insurance, said “this case shows that exaggerating or fabricating injuries doesn’t pay. We have a range of tools at our disposal to verify whether these claims are correct, and we won’t hesitate to take action where we find evidence that claimants have embellished their claim to try and get a bigger insurance pay out. We are committed to protecting our honest customers from the potential costs of these exaggerated claims, and we’re pleased that this claimant was brought to justice.”

Claire Laver, Head of Market and Strategy for Fraud said “this is a great result demonstrating the tenacity and the willingness to fight by both RSA and our lawyers."

Our Motor Fraud Team deals with cases like this on a regular basis. For more information or advice, please contact one of our experts.

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