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Published 25 octubre 2018
Two novel claims were recently successfully defended in full following technical arguments raised by our Counter Fraud Team. The circumstances of both claims, which stemmed from separate road traffic accidents, were very different but had one very significant similarity; both involved claimants who had potentially genuine claims but had clearly exaggerated the extent of their alleged personal injuries.
This alert looks at both cases in detail, at how and why the arguments were applied and at the continued importance of cross referencing allegations in statements of case where proceedings have been issued with those listed within the Claim Notification Form, an issue fundamental to our success in Molodi v Cambridge Vibration Maintenance Service and another  EWHC 1288 (QB).
This was a significant accident involving 2 impacts and a spin of the vehicles. The claimant's injuries (a 6 week soft tissue ankle injury and an 8-9 month minor psychological injury) would normally have been considered consistent with such an accident. However, concerns were raised following searches by our intelligence team which showed that the claimant was able to complete a 10k race in a personal best time 13 days after the accident, despite her alleged ankle injury. It was noteworthy that the claimant did not seek any medical treatment from her GP.
Following our Part 18 questions, the claimant stated in her witness evidence that she "did no running at all for approximately 2 to 3 weeks after the accident". The claimant also alleged that pain, swelling and bruising in her foot and ankle persisted for 6 weeks.
In light of the inconsistencies in the claimant's evidence, we issued Part 35 questions to the medical expert. The expert agreed that the information the claimant provided to him and in her witness statement was inconsistent with the fact that she completed a 10k run, in a personal best time, just 13 days after the accident. In his Part 35 replies, the medical expert agreed that if this were correct then this would cast doubt on the claimant's credibility. He further accepted that his report was entirely reliant on the information provided to him at examination by the claimant (he examined her 5 months post-accident, at which time there was no sign of injury given that she had, on her own evidence, already recovered from her physical injury / symptoms). He stated that: "It would seem the claimant did sustain ankle injuries in this road traffic accident but from the evidence presented this may not have been as severe or prolonged as the client stated at interview."
Following the Part 35 responses, the claimant put forward a "drop hands" offer. This was rejected and we prepared to proceed to trial. However, rather than serving a Notice of Discontinuance, the claimant simply failed to pay the hearing fee and this led to her claim being automatically struck-out by the court.
As the claim had not been discontinued, an application for a finding of "Fundamental Dishonesty" in order to disapply QOCS and obtain an enforceable costs order could not be made, though it is unlikely that a judge would have found the extent of the exaggeration to be sufficient for such a finding in any event. We therefore applied to vary the unless order regarding the payment of the hearing fee, such that the claim would be struck-out pursuant to CPR 44.15(1)(c) – that the conduct of the claimant had obstructed the just disposal of the proceedings – in order to obtain an enforceable costs order. So far as we (or Counsel) were aware, this was the first time that such an argument had been advanced.
The application was successful, resulting in the claimant being ordered to pay costs of the action, and we received a prompt £8,000 payment.
Handler Rebeccah Jaarson commented "What was particularly satisfying about securing the result in this case, was the novel legal argument we successfully made. The claimant's solicitors must have thought they had gained the upper hand by simply not paying the hearing fee and thereby allowing the case to be automatically struck-out without any costs consequences. I am very pleased that we were able to show them how very wrong they were, when our novel Application trumped their tactics. A great example of our intelligence, legal and recovery teams all working collaboratively to achieve a great result, with not just substantial fraud savings but an £8k recovery."
The claim which proceeded to trial was one of 14 claims brought as a consequence of the alleged accident. Mr Barry was the last man standing. He claimed that he was injured when the minibus in which he was allegedly a passenger, was struck in the rear by Aviva's policyholder's vehicle.
Enquiries with the policyholder raised concerns as to the genuineness of the alleged collision, as well as the likelihood of injury to all allegedly involved. 2 claimants issued court proceedings, and the remainder maintained their position at pre-litigation stage.
The first claimant to litigate, Mr Hampshire, an alleged occupant of the policyholder's vehicle and the partner of the policyholder, did not start his litigation very well. His pleadings were poor, in that he erroneously alleged that he was an occupant of the third party minibus. A robust defence was filed pointing out the numerous errors in his pleaded case, as well as the inconsistencies evident across all of the CNFs submitted, which was a particular point we focused on from an early stage. Mr Hampshire's solicitors came off the court record as acting for him, following which his claim was struck out and, at our request, an exception made to the QOCS regime.
Mr Barry was the only other alleged occupant to issue court proceedings (after changing his solicitors twice). A similar defence to that filed against Mr Hampshire was filed and served but, despite the deficiencies in the case apparent from analysis of the papers, the case proceeded and the decision was taken to take the matter to trial. At trial, following a discussion between the parties' representatives, Mr Barry agreed to abandon his claim.
This led to the abandonment of all of the remaining pre issue claims.
Handler Phil Morris commented "From the outset of our initial instruction, on receipt of the first set of proceedings for Mr Hampshire, it was abundantly clear that this was not going to be a straightforward case. Following the strike out of Mr Hampshire's case, and whilst there were clear concerns with all aspects of the evidence, it was proving extremely difficult to find that "silver bullet" that would lead to the dismissal of the later proceedings. Nevertheless, our approach, paid dividends when Mr Barry, at the doors of the court, finally realised the cumulative weight of the evidence against him and decided not to risk a finding being made against him, despite the Trial Judge being noted to be particularly "claimant friendly". This case shows our legal and intelligence teams working together and identifying and marshalling the available evidence to make the most of the prospects of success in a case which, at first appearances, might not have appeared the strongest.
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