Fraud and Fundamental Dishonesty: Tackling Disingenuous Personal Injury Claims - Simon Trigger Dominique Smith Barristers, 1 Chancery Lane
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Fraud and Fundamental
Dishonesty: Tackling
Disingenuous Personal Injury
Claims
Simon Trigger
Dominique Smith
Barristers, 1 Chancery Lane
October 2020
Topics to discuss:
- Case law;
- What to look out for;
- Fundamental dishonesty and remote hearings;
- Whiplash reforms;
- Questions.
October 2020
Case law
• Ivey v Genting Casinos [2017] UKSC 67
Sets out the test for dishonesty:
“…the fact finding tribunal must first ascertain
(subjectively) the actual state of the individual’s
knowledge or belief as to the facts…
Once his actual state of mind as to knowledge or
belief as to facts is established, the question
whether his conduct was honest or dishonest is to be
determined by the fact-finder by applying the
(objective) standards of ordinary decent people."
October 2020Case law
• Howlett v Davies [2017] EWCA Civ 1696
• Confirmed that you do not need to plead
fundamental dishonesty.
• London Organising Committee of the
Olympic and Paralympic Games (in
liquidation) v Haydn Sinfield [2018] EWHC
51
• “a claimant should be found fundamentally
dishonest… if the defendant proves on a balance of
probabilities that the claimant has acted
dishonestly in relation to the primary claim and/or
a related claim, and that he has thus substantially
affected the presentation of his case”
October 2020Case law
• Molodi v Cambridge [2018] EWHC 1288
• “The problem of fraudulent and exaggerated
whiplash claims is well recognized and should…
cause judges in the County Court to approach
such claims with a degree of caution, if not
suspicion”
• Have they sought medical attention and returned
in the event of non-recovery?
• Have they sought appropriate treatment?
• Is their account hopelessly inconsistent,
contradictory or untrue?
October 2020Case law
• Richards and McGrann v Morris [2018]
EWHC 1289
• Outlined the importance of Claim Notification
Forms (“CNFs”) and the accompanying statement
of truth.
• Pegg v Webb [2020] EWHC 2095
• If a Claimant seeks no medical attention after an
accident, and solely undergoes physiotherapy
arranged by their solicitors, this should
immediately raise “at least a suspicion in the
mind of the judge”.
October 2020Case law
•Garraway v Holland and Barrett [2020]
•County Court decision of HHJ Simpkiss
•Surveillance evidence successfully deployed
“She may not have recognised that she was being
dishonest because she has become obsessed with this
case, and with attributing her current medical
condition to the accident. There is a considerable
psychiatric element to this. Nevertheless, what she has
done was objectively dishonest and in doing so, she has
misled the experts. Nothing could be more fundamental
in a personal injury claim of this nature than to give
the experts a false impression of her condition.”
October 2020Things to look out for
• Instructing solicitors before seeking
medical attention.
• Injury inconsistencies.
• Medical records:
• Previous accidents?
• Relevant injuries/conditions that have
not been disclosed?
• Injuries that may overlap with
prognosis?
• Accident circumstances:
• Have they changed/been exaggerated?
• Social media.
October 2020How to tackle disingenuous claims
• Flag inconsistencies in your defence (e.g.
differences in the CNF and medical
report).
• Surveillance evidence.
• Offer to discontinue.
• Applications post-discontinuance:
• Zurich Insurance v Romaine [2019] 1
WLR: consider timing of discontinuance
- have they discontinued when “the
game is up”?
• Enforcement.
• Contempt proceedings.
October 2020Remote hearings
• Can fundamental dishonesty be raised in a
remote hearing?
• Should hearings be in person if
fundamental dishonesty is raised?
October 2020Whiplash Reforms
The background
October 2020Whiplash Reforms The Current system: o Pre action protocol o Fixed costs/CFA and ATE o Broadhurst v Tan [2016] EWCA Civ 94 o CPR 44.16 and CPR 44.15
Whiplash Reforms Proposed changes: Why change The government is bringing forward a package of measures to crack down on minor, exaggerated and fraudulent soft tissue injury (‘whiplash’) claims stemming from road traffic accidents The proposals are aimed squarely at tackling the compensation culture which has grown up around whiplash claims in recent years. That culture is fuelled by a substantial industry of sustained nuisance cold-calls and targeted advertising which encourages motorists to make claims when little or no injury has been suffered.” Or as Chris Grayling put it (my emphasis added); The Government is determined to do more to reduce insurance premiums further to help with the cost of living. Fraudulent, exaggerated and unnecessary insurance claims continue to place a significant financial burden on each and every motorist
Whiplash Reforms Summary: oCivil Liability Act 2018 oWhiplash Regulations (draft) - tariff oSmall claims track increase to £5,000 oOn line portal oNot for pedestrians, motorcyclists or cyclists oChildren? oNo pre medical settlement
Whiplash Reforms Civil Liability Act 2018 Section 1(1) "an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2) but not including an injury excepted by subsection (3)". Section 1(2): An injury falls within this subsection if it is- a sprain, strain, tear or rupture or lesser damage of a muscle, tendon or ligament in the neck back or shoulder or an injury of soft tissue associated with a muscle tendon or ligament in the neck back or shoulder. Section 1(3): An injury is excepted by this subsection if- it is an injury of soft tissue which is part of or connected to another injury and the other injury is not an injury of soft tissue in the neck back or shoulder of a description falling within subsection (2)
Whiplash Reforms Draft Whiplash Injury Regulations oIncludes one or more “minor psychological injuries on the same occasion as the whiplash injury” oSame sum awarded – not defined oExceptional circumstances – 20% increase.
Proposed Tariff
Linked Changes Linked Changes: Increase of Small Claims Track Limit to £5,000 On line portal – www.officialinjuryclaim.org.uk No pre medical report settlement (s.6 Act)
Future Litigation Issues arising; An injury is an excepted injury if it a soft tissue injury (of neck shoulder and back) which is “part of or connected to” another injury. However it will remain a whiplash injury if it the other injury is an injury which is “associated” with a muscle tendon or ligament in the neck back or shoulder. When can an injury be said to be part of or connected to another injury as opposed to associated? Examples: Arm injury, Foot Injury – incentivise Claimants to injure their foot and ankle.
Future Litigation In Practice: If an unconnected injury: two separate awards for damages and costs for the two aspects of the injury. This seems an unlikely but is arguably consistent with section 3(8) – “Nothing in this section prevents a court in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply awarding an amount of damages for PSLA that reflects the combined effect of the persons injuries (subject to the limits imposed by regulations under this section
Whiplash reforms Other issues; o On line portal – no ADR o Paper version – digital disenfranchisement o Fee remission
Children Children and protected parties will be outside of the increase to the small claims track increase and therefore (according to Mr Buckland): “these claimants will not be subject to the new small claims limit, they will also not be subject to the new pre-action protocol and so will not have access to the online service. As such, they will not be able to source their own medical report via the online service, which is statutorily required to settle claims for whiplash injuries. Therefore, until they can access the online service, the normal track for claims by children and protected parties which include a whiplash injury, will be the fast track and these claims will not be allocated to the small claims track. This means that, for now, these claimants will be able to instruct a legal representative who may obtain a medical report on their behalf and their costs of legal representation will remain recoverable”. But still subject to the Act!
Whiplash Reforms - Conclusion Credit hire: no effect
Simon Trigger
strigger@1chancerylane.com
Dominique Smith
dsmith@1chancerylane.com
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