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Published 3 septiembre 2020
Automatic Number Plate Recognition (ANPR) has been available in policing for a number of years and has become increasingly used by private companies to manage spaces such as car parks. In the last few years we have seen private ANPR data become available to search against to see if a certain vehicle has been logged by ANPR privately managed areas (subject to compliance with data protection). The ability to search ANPR data has become increasingly part of the investigative toolkit that a number of insurers deploy when investigating credit hire claims following road traffic accidents.
The premise is a simple one, if a supposedly unroadworthy vehicle registers on private ANPR data whilst being unroadworthy and whilst the claimant is also claiming credit hire, then was there really a need for the claimant to have obtained the credit hire vehicle? If not, that leads us to question as to whether or not one or more parties associated with the claim has acted fraudulently.
The answer to the question, as ever, is in the detail and even if the unroadworthy vehicle was in use during the credit hire period then the claimant may not have been aware of the use of their vehicle. The vehicle may have passed into the hands of the credit hire organisation, a storage company or a repairer, any of whom could be using the vehicle and not necessarily with the claimant’s knowledge.
ANPR hits may also have legitimate explanations and those using the data would be well advised to look at the chronology of the claim, in particular the vehicles, to see if innocent explanations may exist for ANPR hits before jumping to the conclusion that there is something sinister about the credit hire claim. For example hits in the last few days of the hire period may be explained by the fact that the vehicle had been repaired and was being test driven before being returned to the claimant.
Even if there is a claim with numerous ANPR hits throughout the duration of the credit hire period, setting a strategy as to how the ANPR data will be used will be determined by a multitude of factors.
If you are an insurer who is a signatory to the GTA and so too is the credit hire organisation, then this is likely to have a significant bearing on how you proceed with the claim. Maintaining commercial relationships and protocols will no doubt have a bearing on claims within the GTA space and how an insurer chooses to deal with the claim.
As time goes on and the amount of data increases, there will undoubtedly be some credit hire and storage companies who are seen too frequently in datasets. The businesses which cause the insurance industry concern will surely face challenging questions pertaining to their business practices and due diligence checks on suppliers of storage and repairs. We are already seeing certain supply chains between the credit hire organisations, storage companies and repair networks being looked at more closely as they appear more frequently than might be expected.
In many ways, this is the core question which will determine the investigative strategy, as well as how you chose to disclose ANPR information and potentially whether or not you are prepared to allow the claim to litigate.
In answering this question it is vitally important to obtain as much information as possible about the damaged vehicle and produce a detailed chronology which is likely to provide inferences as to who was in possession of the damaged vehicle. Pulling information about loss of use, repair monitoring, storage periods, engineering inspection locations and MOT testing may all lead to clues. Mapping key locations such as the claimant’s home address, the address of the credit hire company and the location of the ANPR hits may also be informative.
When the claim litigates, further information such as impecuniosity evidence may give indications as to when and where the claimant has been during the credit hire period and this information can be cross referenced against the ANPR hits. DAC Beachcroft have already used impecuniosity evidence to successfully repudiate a claim where ANPR evidence clearly indicated that the claimant’s vehicle was in use throughout the duration of the credit hire vehicle.
If the ANPR hits obtained are a cause for concern regarding the genuineness of the credit hire claim and the claimant has also presented a claim for personal injury then this opens up an opportunity to use ANPR to dismiss the whole claim and achieve savings on indemnity spend.
Section 57(1) of the Criminal Justice and Courts Act 2015 states:
This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—
(a) the court finds that the claimant is entitled to damages in respect of the claim, but
(b) on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.
The opportunity to raise Section 57 arguments is predicated on whether the claimant (rather than the claim) can be shown to have been dishonest. To explore the answer to that we must return to the core question of who was in possession of the vehicle at the time of the ANPR hits. If the answer to that question is the claimant then the case strategy should include consideration as to whether there is an opportunity to defeat the claim in its entirety. At DAC Beachcroft we have raised the spectre of a Section 57 Application on a number of cases which has led to discontinuances or strike out of the entire claim. Some of the tell-tale indications that the claimant is in possession of the vehicle would include an absence of the use of a storage company, the engineer inspecting the vehicle at the claimant’s home address or place of work, cross referencing the claimant’s impecuniosity evidence with the dates and locations of the ANPR hits to see if the claimant made any purchases at retail establishments near to the ANPR hit. If the evidence suggests that it was the claimant in possession (or permitting the use) of the vehicle during the credit hire period then consideration should be given to a positive pleading within the defence or counter schedule to set out the insurer’s stall and what inferences the judge is being invited to find based on the evidence.
If the insurer can cross the hurdle of establishing fundamental dishonesty pursuant to Section 57, then it almost always follows that the claim will be shown to be fundamentally dishonest pursuant to CPR 44.16(1) which allows for Qualified One Way Costs Shifting to be set aside and for the insurer to enforce any costs order obtained.
In the event that a litigated claim for credit hire and other vehicle associated losses such as storage are successfully defended, then an insurer should consider whether to pursue a third party such as the credit hire organisation, storage provider or repairer who have facilitated or sought to benefit from the presentation of an unproven claim. Third Party Costs Orders are exceptional costs orders and a full discussion of the Court’s jurisdiction is beyond the scope of this article. However, the Court’s powers to make such Order arise from Section 51 of the Supreme Courts Act 1981 and may be made against a non-party where the non-party substantially controls or benefits from the litigation.
If there is a cause of action against the non-party and the non-party could have been joined to the original proceedings it will be exceptional for an order for costs to be made against a non-party. This qualification to the Court’s discretion to make an Order against a non-party needs careful consideration in the context of claims where the ANPR evidence suggests that the non-party has acted in a deceitful manner, such as presenting a fraudulent invoice, as there may be a cause of action in the tort of deceit. If the litigation strategy does not correctly consider potential causes of action against the non-party then it may prejudice the insurer’s future ability to make an application seeking a third party costs order.
This often underused tool within our litigation strategies can be used either:
An action in the tort of deceit also allows for the insurer to claim exemplary damages from those who have been deceitful, providing an opportunity to recover more than just the losses incurred. Pursuing an action in the tort of deceit would be a somewhat aggressive strategy but where an insurer faces either a high value claim, particularly strong case evidentially or where the deceiver is persistently making such claims then such action may be warranted.
The above discussion is by no means a full list of all of the issues to be considered when setting processes and strategies regarding ANPR data. Questions as to whether the ANPR data should be released pre-issue, choice litigation and how to disclose within proceedings at disclosure and witness evidence are all likely to be case specific and dependent upon the objective of the strategy. Tactical use of Part 36 offers is also going to be a significant consideration on borderline cases or where not all heads of loss are tainted by dishonesty and may also present opportunities to drive a wedge between the claimant and those entities with a financial interest in the litigation.
Undoubtedly as more ANPR cases enter into litigation and such evidence is presented before the Courts the tactics on both sides will develop. Both our Vehicle Hire & Damage Fraud and Counter Fraud teams have expertise in this developing area and would be happy to discuss queries you may have.
For more information, please contact:
+44 (0)121 698 5413
+44 (0) 121 698 5309
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