Fundamental dishonesty and the Litigation Friend: a cautionary tale

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Fundamental dishonesty and the Litigation Friend: a cautionary tale

Published 23 December 2019

In a recent case before the county court at Middlesbrough, DAC Beachcroft acting for the defendant and his insurer Allianz Insurance Plc secured a rare finding of fundamental dishonesty with an order that costs be paid directly by the Litigation Friend of two claimants.

In AX and BX (by their Litigation Friend CX) v ZZ, the Claimants (two children) were alleged to have been passengers in a vehicle with their mother and father, the latter being the driver, when it was involved in a collision with a vehicle being driven by ZZ who was alleged to have been negligent.  It was admitted that if there had been a collision then ZZ was liable, but the primary line of the defence was that no collision had occurred.

The evidence of the accident and injuries was given by the Claimant’s mother, their Litigation Friend, supported by medical reports.  In the medical reports, in respect of the younger Claimant the doctor stated “He tells me that the vehicle, he was travelling in, was moving at a moderate speed when it collided with a third party vehicle which failed to give way. The impact from from [sic] the front”. In respect of the elder, the report stated “He tells me that the vehicle, he was travelling in, was moving at a moderate speed when it collided with a third party vehicle which failed to give way. The impact from from [sic] the front.”  Both children were accompanied at their examinations by their mother.  The injuries claimed for were, for both, neck and back injury and some travel anxiety.  The Claimants’ father did not give evidence and no witness statement from him was served.

The Defendant, represented at trial by barrister James Hogg instructed by DAC Beachcroft, gave evidence on his own behalf, also calling evidence from the involved Police Officer and an expert in respect of the alleged collision.  It was a significant issue for the Defendant’s case that the Litigation Friend, when reporting the collision to the police on the day of the accident and during its investigation some days later, had confirmed that no one was injured as a result of the alleged collision.

Various aspects of the evidence given by the Litigation Friend failed to impress the judge who accepted the police officer’s evidence that CX had informed him that there had been no injuries, contrary to what she had subsequently averred in her witness statement and oral evidence.  Other matters that concerned the judge were the delay in attending the doctors with the children, the inconsistency in the reasons given for the delay and the asserted injuries, the lack of objective findings on examination and the lack of any reference to the doctor of any psychological issues for the children.  The judge’s view was that the late attendance at the doctors was suggestive of having been told to go to the GP (presumably as something one would expect in the event of an injury).

The judge, His Honour Judge Gargan, found that, on the balance of probabilities, no injury had been sustained and accordingly dismissed both claims, finding them to be fundamentally dishonest and ordering the Litigation Friend to pay the Defendant’s costs, which were summarily assessed on the indemnity basis at a sum in excess of £10k with permission being granted to the Defendant to enforce the order.

James Burge, fraud manager, Allianz Insurance said:

“This outcome is a positive step in the right direction for the industry. Dishonest and exaggerated claims will be fought and this case of fundamental dishonesty sends a clear message for those thinking that they can make a claim for their own financial gain.

“We will continue to work with our legal experts to ensure that together we can tackle fraud to protect our genuine policyholders”.

By coming to the decision that it has, the court has confirmed that a Litigation Friend will personally bear the cost of their fundamental dishonesty: that the claimants themselves did not give evidence or sign statements of case is no barrier to such a finding.

Our counter fraud team deals with cases of fundamental dishonesty on a regular basis. For more information or advice, please contact one of our experts.

Authors

Catherine Burt

Catherine Burt

Newcastle

+44 (0)191 404 4042

Georgia Court

Georgia Court

Birmingham

+44 (0)121 698 5358

Andrew Thomson

Andrew Thomson

Birmingham

+44(0)121 698 5182

Key Contacts

Catherine Burt

Catherine Burt

Newcastle

+44 (0)191 404 4042

Georgia Court

Georgia Court

Birmingham

+44 (0)121 698 5358

Andrew Thomson

Andrew Thomson

Birmingham

+44(0)121 698 5182

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