legal watch - fraud - july 2014

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Legal Watch: Counter Fraud July 2014

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Page 1: Legal Watch - Fraud - July 2014

Legal Watch:Counter FraudJuly 2014

Page 2: Legal Watch - Fraud - July 2014

In This Issue:

Taking the Fight to the Fraudsters

• Winning is not enough

• Exemplary damages

Recent Successes

• Perseverance and the importance of

comparing and contrasting evidence

• Investigations identify a fabricated insured

• Pressure on claimants leads to strike out of

claims

• Evidence from a settled claimant leads to

defeat of suspected bogus passenger claims

• Suspected staged accident/social media

• Suspected staged accident with CCTV

• Similar fact evidence

• Solicitors acting without instructions

• Fraud ring

• Tainting argument leads to strike out

• Claimant not allowed to withdraw Part 36

offer

• Pre-action disclosure application defended

Welcome to...

Taking the Fight to the FraudstersWinning is not enoughAs insurers are only too aware, successfully defending a claim

can often be a pyrrhic victory, as the fraudulent claimant walks

away with no consequence, the insurer’s costs unpaid by his

costs insurers, and with the fraudulent claimant having no

assets, rendering a recovery action unattractive.

A growing body of case law supports the proposition that

there is another way: contempt of court. A successful case

of contempt of court is likely to lead to the fraudster being

imprisoned.

Contempt of court is an ancient power of the court, to hold to

account those who make a mockery of the tribunal. CPR 32.14

states that a party may be in contempt of court if they make a

false statement in a document verified by a statement of truth

without an honest belief in its truth.

So what is required in order to persuade the court to hold a

fraudster in contempt?

The law has been consolidated into CPR 81. There are three

stages to the proceedings.

First, the substantive proceedings should be concluded

before a contempt application is put on its feet. The outcome

could be dismissal at trial (Quinn v Trifonovs), discontinuance,

or even settlement. In Fari v Homes for Haringey, the claim

was so grossly exaggerated that the claim was struck out,

even though the claimant was otherwise entitled to £1500

damages. Our collegaues at Plexus Law acted for Homes for

Haringey throughout the litigation.

Once the substantive proceedings are at an end, an application

is made to the High Court for permission to bring a new case

in contempt against the claimant. Permission is required to

ensure that spurious claims are not made, having regard to the

gravity of the punishment sought.

Page 3: Legal Watch - Fraud - July 2014

The application must be supported by an affidavit from the

lawyer, which should identify precisely what false statements

the claimant is said to have made. The affidavit must exhibit

all the documents upon which the application is based

and also set out any evidence which might go against the

application. The affidavit has to be served on the claimant

in person.

At the application hearing, the court must decide if there is

a sufficiently strong case to allow it to proceed. The court

will need to be satisfied that there is a prima facie case that

the contempt will be proven, beyond reasonable doubt. The

judge deciding the permission hearing does not need to be

sure of the contempt himself, but needs to be satisfied that

there is a strong case.

In Fari, permission to proceed was granted because

there was a clear line between what the claimant said she

had suffered, and what surveillance evidence revealed.

Conversely, in RSA v Kosky permission was refused because

there was not a clear-cut case when the surveillance was

compared with the claimant’s statements.

The judge will need to decide if there is public interest in

allowing the case to proceed. Not every contempt should

attract the sanction of imprisonment; it is only in particularly

serious cases that permission should be granted. In

Trifonovs, permission was granted due to the clear public

interest in punishing the claimant to deter others from

pursuing fraudulent injury claims.

The judge will also need to decide if it is proportionate to

punish the claimant for his contempt. The majority of cases

where permission has been granted have been cases

where the claimant has exaggerated his injury claim; and

the difference between the true value of his damages and

his claim as presented has shown clear proportionality in

bringing the contempt proceedings. In Liverpool Victoria

v Bashir, the claimant’s claim had been modest – in the

bracket of £5000 – 15000; but the judge held that the fraud

committed was of a most serious kind and found that a

prison sentence was justified.

Once permission is granted, contempt proceedings must

be commenced and dealt with without delay. In South

Wales Fire & Rescue v Smith the proceedings had taken so

long to come to a head that the claimant was excused an

immediate prison sentence. Instead, a suspended sentence

was imposed which would not be executed, provided he

paid the insurer’s costs.

The claimant is permitted to defend or admit the

proceedings; but retains the right against self-incrimination.

If he does nothing, the insurer must prove the contempt

beyond reasonable doubt. The claimant is entitled to call

evidence to rebut the allegations, which he is required to

serve before the trial.

In the event the claim in contempt is successful, not only

should the claimant expect imprisonment; he may also

be ordered to pay the insurers’ costs of the contempt

proceedings. Given that a costs judgment is actionable for

six years and fraudsters are generally imprisoned for less

than a year, this should not be ignored by the applicant

insurer.

Insurers should be under no illusion that contempt of

court is neither an inexpensive nor certain area; and an

application should only be made after careful consideration.

They should also bear in mind that they may refer the case

to IFED if the evidence is sufficiently strong.

Jonathan HeadT: 01489 882913

E: [email protected]

Exemplary damagesA series of cases suggests that insurers should be pleading

exemplary damages as part of a counterclaim where fraud

is suspected. But, what are the circumstances when such

damages are unlikely to be awarded and are there any steps

to be taken to improve the prospects of success?

Fifty years ago in Rookes v Barnard [1964] A.C. 1129 (the

leading case on exemplary damages), Lord Devlin stated

that “the object of exemplary damages is to punish and

deter”. He identified that exemplary damages could be

awarded where the fraudulent claimant’s conduct has been

Page 4: Legal Watch - Fraud - July 2014

calculated by him to make a profit for himself, which may

well exceed the compensation payable to the insurance

company.

Unfortunately their use thereafter was restricted to only

certain types of action and it was not until 13 years ago

that the matter was reconsidered by the Supreme Court

(then the House of Lords) in Kuddus v Chief Constable of

Leicestershire [2001] UKHL 29.

The view was taken that the important factor was the

behaviour of the defendant and awards by the lower courts

(only a small proportion of which are reported) now suggest

a greater appetite for the imposition of exemplary damages.

Further to the reported decisions in AXA Insurance v

Thwaites (2008), AXA Insurance v Jensen (2008), Direct

Line v Suleman (2010), AXA Insurance v Shaikh (2010) and

Liverpool Victoria v Ghadha & Iqbal (2010), the matter of

Tasneem & Others v Morley came before Her Honour Judge

May QC in September 2013, sitting at Central London

County Court. The court was asked to award exemplary

damages against claimants involved in nine connected

actions which had already been struck out. Additional

exemplary damages were awarded against all parties, save

for the lead claimant who already had to bear the brunt of

costs in the proceedings.

These decisions provide useful guidance in bringing such

claims before the courts.

1. Is the claimant being criminally prosecuted?

Exemplary damages are more likely to be awarded in the

absence of criminal penalties to avoid a double penalty.

Can evidence be provided to the court about impending

prosecutions?

• In Tasneem & Others v Morley none of the claimants

were to face prosecution.

• In Axa Insurance UK Plc v Thwaites the claimant

received a suspended sentence for deception and

exemplary damages were not awarded.

• However, in AXA Insurance UK Plc v Jensen, exemplary

damages were awarded where the claimant received a

caution for fraudulently claiming that her caravan had

been sold as the court decided that the caution was

not significant in light of the nature of the offence, the

amount of money and the need to deter against future

similar activities.

2. The claimant must know about the claim and should

have the opportunity to respond

• In Tasneem & Others v Morley there was no prejudice

to the claimants who had had ample opportunity to

respond and to attend the hearing and had chosen to

do neither.

3. The claimant’s means are a relevant factor

Asset checks should be undertaken where possible

and cases chosen carefully. Is the court likely to award

exemplary damages against a claimant with limited means

and will the insurer recover such damages? Do the benefits

of deterrence and punishment outweigh the cost?

• In Tasneem & Others v Morley the claimants had not

provided any information concerning their means

despite the opportunity to do so. The judge found she

did not need to take into account the absence of such

evidence as a restricting factor in the awards made.

• In Liverpool Victoria v Ghadha and Iqbal the court

awarded exemplary damages of £500 and £1000

because the claimants were of limited means.

4. How much will the award be?

There is no specific formula, but some broad guidance.

The courts will consider the profit that the claimant has

sought to obtain or a percentage of the basic claim that the

claimant made. In a fraud case insurers should be able to

recover their costs on an indemnity basis. Where costs are

in excess of the claim value, are exemplary damages on top

appropriate?

• In Tasneem & Others v Morley the strength of the

message of deterrence was held to be in the overall

amount that claimants are obliged to pay. Where

the costs against the lead claimant were in excess

of £44000 this was held to be a sufficient deterrent

Page 5: Legal Watch - Fraud - July 2014

and further exemplary damages were not awarded.

Exemplary damages were however still awarded against

the other claimants.

The general tendency of the courts is to award around 50%

of those damages sought.

• In AXA Insurance v Jensen the claimant’s conduct was

thought to be “relatively severe” and an additional 50%

of the basic claim was awarded as exemplary damages.

• In AXA Insurance v Shaikh (2010) the claimant’s failure

to mention his involvement in a further accident was

found to be an “expensive nuisance” and 50% of the

sum claimed by the insurer was awarded.

• In Direct Line v Suleman (2010) the insurer was awarded

damages of £300,000 and an additional £92,000 in

exemplary damages, just over 30%.

The principle is that one single award is made against

multiple claimants.

• In Tasneem & Others v Morley the lower value of claims

of passengers as against the higher value claims of

drivers was a restricting factor, although not an absolute

restriction. Exemplary damages were awarded of £2000

per driver and £1000 per passenger.

5. Request recovery for in-house investigation costs

• In Liverpool Victoria v Ghadha & Iqal the insurance

company were awarded £750 for in-house costs.

• In Tasneem & Others v Morley the judge found that

the cumulative impact of these low-value fraudulent

claims is huge and that insurance companies should

be properly compensated for their reasonably incurred

investigation costs of £1000 per claimant.

Exemplary damages are an important weapon in a

defendant’s armoury; they have a strong deterrent effect,

can prove invaluable as a negotiating device and often

result in claims being discontinued. Claims for exemplary

damages can be brought as a counterclaim when the

defence is filed or at a later date should new evidence arise.

However, cases should be chosen with care before

proceeding to a hearing. Courts must be persuaded that the

potential outcome of the claimant’s conduct well exceeds

the punishment and deterrent effect that can be achieved

by an award of compensatory costs and damages.

Lindsey Bartling

T: 0207 462 3456

E: [email protected]

Page 6: Legal Watch - Fraud - July 2014

Recent SuccessesPerseverance and the importance of comparing and contrasting evidenceAK, SM & IM v S Insurance Company

Gloucester and Cheltenham County Court

Three claimants alleged they were passengers in the

insured’s vehicle which failed to stop at a junction and

collided into a passing vehicle. The passing vehicle did not

stop and remained untraced. The insured supported his

passengers’ claims and indemnity was reserved.

Although initially there were a small number of concerns

and limited claims history, the evidence gathered revealed

multiple and substantial discrepancies. The insured’s vehicle

damage was found to have been largely consistent, but

engineering evidence suggested that the passing vehicle

may not have been driveable post collision. The claimants

failed properly to reveal their claims histories and pre-

existing conditions. Their claims that sporting activities were

affected were found to be untrue and there was no evidence

of their alleged absences from work and education.

Part 35 questions, in conjunction with witness evidence

and GP records, revealed the claimants’ evidence to

be misleading, including their excuses as to why the

pre-examination questionnaires had not been properly

completed and their own medical expert agreed the

claimants were unreliable.

The claimants’ solicitors removed themselves from the

court record and we negotiated recovery of costs directly

from the claimants. Estimated overall savings for the client

were in the region of £60000.

For further information regarding this matter, please contact

Lindsey Bartling

T: 020 7462 3456

E: [email protected]

Investigations identify a fabricated insuredRafiq Fasar v S Insurance Company; Sadaqat Hussain v Robert Wilkinson & S Insurance Company

Walsall County Court

4, 5 & 6 March 2014

These two claims were tried together as both concerned

an accident alleged to have occurred on 23 January 2011.

Both claimants claimed that the insured’s van collided with

Hussain’s Range Rover, causing this to collide with Fasar’s

Vauxhall Vectra.

Our client adduced evidence showing that there was no

trace of the insured at his given address; that the family

living at the given address had lived there for seven years

and had no knowledge of the insured; that notwithstanding

his occupation allegedly being a hospital doctor, the insured

was not registered with the General Medical Council; and

that the bank account used to purchase the insured’s policy

had been used to purchase a further policy of insurance,

against which a number of suspicious claims had been

presented.

At trial, Recorder Mainds found that the claimants were

unreliable witnesses (he was assisted in this regard by the

fact that Hussain failed to attend for the third day of the trial

and withdrew his instructions to his solicitors and counsel).

The judge found that the insured was a “ghost”, fabricated

for the purpose of bringing these claims and that the

accident itself was a fabrication. He dismissed the claims in

their entirety. Our efforts led to a saving against reserve for

our client in the sum of £302956.

For further details regarding this matter, please contact

Howard Chater

T: 01908 298205

E: [email protected]

Page 7: Legal Watch - Fraud - July 2014

Pressure on claimants leads to strike out of claimsES, CF & JC v MH & S Insurance Company; MY v MH & S Insurance Company

Our insurer client was presented with six claims from alleged

occupants of two vehicles involved in an alleged accident

on 6 July 2011.

A defence was filed, highlighting a number of discrepancies

in the evidence presented by the parties, particularly with

regards to the evidence presented by the third party driver,

Michael Yates.

The fourth claimant failed to comply with court directions

and an unless order was obtained, with a strike out provision.

He failed to comply with this unless order and his claim was

struck out in January 2014.

Two litigated claims remained and these were listed for a

trial between 12 and 17 May 2014. We continued to maintain

pressure on the remaining claimants, putting them on notice

as to the discrepancies that we would be expecting them

to address in cross-examination. This pressure led to the

claimants withdrawing instructions from their solicitors

shortly prior to the trial and we secured orders for strike out

of the claims.

Our efforts led to a saving against reserve for our client in

the sum of £136728.

For further information regarding this matter, please contact

Howard Chater

T: 01908 298205

E: [email protected]

Evidence from a settled claimant leads to defeat of suspected bogus passenger claimsNI & YZ v EC & S Insurance Company

Staines County Court

29 May 2014

A genuine accident occurred on 7 October 2010 on

Goldsworth Road, Woking, Surrey.

The insured failed to co-operate and some two and a half

years later claims were brought by two alleged passengers

in the insured vehicle. This raised suspicion as no mention

had been made of these passengers previously.

Witness evidence was obtained from the driver of the third

party vehicle, who had already had his own claim settled.

He was adamant that there was only one person in the third

party vehicle and it was decided his evidence was strong

enough to proceed to trial.

Before trial we made an application as the claimants had

failed to provide medical records when requested. We

also applied to disallow the claimants from relying on the

documents within their List of Documents, as the version of

the list filed was illegible.

At the application hearing immediately before the trial, the

judge agreed to debar the claimants from relying on any

medical evidence and refused permission for them to call

the first defendant as a witness. The judge found that:

• (a) The court could not ignore the failure to provide a list

of documents in time

• (b) The failure was more than trivial because it deprived

the second defendant of knowing whether the medical

records would be disclosed for three weeks and

therefore delayed the issue of its application, which had

to be heard on the morning of trial. The trial could then

not go ahead if further disclosure were ordered

• (c) There is an automatic sanction under CPR 31.21

debarring reliance on documents not disclosed, or, if not

automatic, the overriding objective and need to enforce

Page 8: Legal Watch - Fraud - July 2014

compliance with court orders demanded a strong

sanction

• (d) The appropriate sanction would be to debar the

claimants from relying on any medical evidence; and

• (e) No relief from sanction would be granted because

there was no written application for relief and, in any

event, there did not appear to be any good reason for

the default.

After the decision, the parties were given time to take further

instructions and the claimants sensibly decided to accept a

drop hands offer to withdraw with no order as to costs rather

than run the risk of a finding of fundamental dishonesty.

The result led to a fraud saving of almost £60000.

For further information regarding this matter, please contact

Stephen Lawrence

T: 020 7462 3424

E: [email protected]

Suspected staged accident/social mediaNB, EW & LR v FW & A Insurance Company

Eight claims were intimated following this alleged accident.

The file was sent to us with concerns the accident was

staged as there was a Facebook friend connection between

the two vehicles.

Further research showed the connection was established

just two weeks prior to the accident and further links were

identified to the third party driver’s Facebook page for his

business.

Previously completed Part 18 responses by the passengers

of the insured vehicle described the damage to the vehicle.

The damage described did not match the engineer’s report.

Further Part 18 responses denied knowing any of the parties

contrary to the social media evidence.

As a result fraud was pleaded. The claimants’ solicitors came

off record and the three litigated claims were discontinued/

struck out. The remaining five claims were withdrawn. The

saving was £64185.

For further information regarding this matter please contact

James Mansell

T: 01908 298264

E: [email protected]

Page 9: Legal Watch - Fraud - July 2014

Suspected staged accident with CCTVLukasz Soroka v Jamie Calland & A Insurance Company

Liverpool County Court

17 & 18 February 2014

The insured had incepted a policy online using a garage’s

address just 17 days before the accident. He changed the

address within minutes to his home address. The alleged

accident occurred on the garage forecourt when the insured

reversed into a stationary vehicle. Three claims were

intimated; one from an alleged passenger in the insured

vehicle and two from alleged passengers in the stationary

vehicle, one of whom was the director of the garage.

CCTV footage was obtained by the garage. It showed an

eight second clip of the accident but did not show persons

getting into or out of the vehicles. It was not available for

the insurer to view as it had been automatically deleted at

the end of the month. The driver and owner of the stationary

vehicle issued proceedings.

The claimant’s medical records evidenced a previous frozen

shoulder injury not disclosed to the medical expert. The

claims notification form, signed the day after the accident,

stated he had whiplash injuries, yet he told the medical

expert his injuries did not materialise for three days.

The claimant alleged that he was at the garage having

been out with the director buying tools. However, bank

statements obtained did not match with this allegation.

An article was located confirming the insured had twice

previously been convicted of fraud. At the trial of this case

at Liverpool County Court the claims were found to have

been fraudulent. This resulted in a £64400 saving with an

order that the claimant pays our costs on an indemnity basis

and returns the interim payment made to him for his vehicle

damage. Recovery of costs is ongoing.

For further information regarding this matter please contact

James Mansell

T: 01908 298264

E: [email protected]

Similar fact evidenceAKA v NS

Central London County Court

21 May 2014

This claim arose from a suspected slam on accident and

fraud was pleaded within the defence.

We applied for permission to rely upon a witness statement

from a driver involved in a similar previous accident with

the claimant, even though this earlier accident had been

found to have been genuine. The claimant objected to our

application to rely on this similar fact evidence.

At the hearing of the application on the morning of the trial,

the judge granted permission for the defendant to rely upon

the similar fact evidence. The judge took the view that even

though fraud is not proven in another accident, this does not

mean that the facts of that earlier accident are not relevant

when deciding whether the index accident is fraudulent.

We also took the point that the claimant’s witness

statements had been served out of time and no application

for relief from sanctions had been made by the claimant.

The judge ordered that the claimant’s solicitors provide a

witness statement, explaining why the statements had been

served late.

Following the application hearing, the claimant made an

offer to discontinue with no order as to costs, which was

accepted by our client on an economic basis.

This led to a saving against reserve in the region of £38000.

For further information regarding this matter please contact

Mark Rudd

T: 020 7079 4623

E: [email protected]

Page 10: Legal Watch - Fraud - July 2014

Solicitors acting without instructionsThe following is a case we were involved in where the

solicitors were caught out acting without instructions.

Those of you who read the last edition of Legal Watch:

Fraud may recall a similar case being reported. A trend is

emerging of old, repudiated cases coming back to life just

before limitation and in several cases new solicitors have

been appointed. If an old case reappears insurers need

to be satisfied that there is a claimant in the background

providing instructions. Demand proof of ID by way of a utility

bill and a signed mandate from the claimant that he has

instructed X and Co to act for him. Inform the claimant’s

solicitors that it is a reasonable request given the length of

time that has lapsed and the previous instruction of another

firm of solicitors. If they refuse, reserve your right to bring

this to the attention of the court on the issue of costs if it

subsequently transpires they have no client.

For further information regarding this matter please contact

Karen Mann

T: 020 7462 3469

E: [email protected]

NM v SIRomford County Court

We were instructed to defend claims brought by five

claimants. The insured was the son of the claimants, who

were elderly. The insured was also their carer and confirmed

to us that the claimants did not wish to pursue their claims

for personal injury.

We took a statement from the insured confirming that the

litigated claimant no longer wished to pursue her claim

and filed a defence confirming our position. We gave the

claimant 21 days to discontinue his claim following service

of the defence but he did not do so. Thereafter we applied

to strike out the claim because it was an abuse of the court’s

process.

The claims were struck out and the claimant’s solicitors

were ordered to pay our costs of the action (from 17 August

2013 when the defence was served).

For further information regarding this matter please contact

Andrea Crisp

T: 01908 298291

E: [email protected]

Page 11: Legal Watch - Fraud - July 2014

Fraud ringDB & RS v LD & A Insurance Company

We were instructed to defend a suspected staged/contrived

RTA that formed part of a fraud ring that centred around the

claimant.

We filed an amended defence which pleaded fraud and

obvious links between other similar accidents. We obtained

engineering evidence and evidence that the insured vehicle

was not damaged following the accident. We applied to re-

amend the defence.

The second claimant’s claim was struck out following his

solicitors coming off record as acting for him, whilst the first

claimant discontinued and agreed to pay £2000 towards our

costs.

All pre issue claims have been withdrawn.

For further information regarding this matter please contact

Andrea Crisp

T: 01908 298291

E: [email protected]

Tainting argument leads to strike outNicholas Elia & Ellie Elia v S Insurance Company

Central London County Court

18 June 2014

This claim arose from an accident which occurred on

1 August 2011. It was accepted that an accident had

occurred, but we argued that the damage to the claimant’s

vehicle had been exaggerated.

In support of our argument, we relied upon expert

engineering evidence, which we alleged showed that the

damage to the claimant’s vehicle was inconsistent with the

collision with the defendant’s vehicle.

The court accepted our argument that the damage to the

first claimant’s vehicle had been fraudulently exaggerated

and his claim for hire was dismissed.

The second claimant, who was an occupant of the first

claimant’s vehicle, also saw her claim for personal injuries

dismissed. The court found that even if the second claimant

had sustained injury, it could not award damages due to her

participation in serious exaggeration.

For further information regarding this matter please contact

Howard Chater

T: 01908 298205

E: [email protected]

Page 12: Legal Watch - Fraud - July 2014

Claimant not allowed to withdraw Part 36 offerPB v JN

Liverpool County Court

The claimant’s solicitors sought to withdraw a Part 36 offer

within the 21-day relevant period as they had neglected to

include a claim for physiotherapy charges. This treatment

was not pleaded in the schedule of loss and there was no

evidence that paid-for treatment had ever been undertaken.

We objected to this and accepted the Part 36 offer, but the

claimant’s solicitors chose to make an application to the

court for permission to withdraw the offer.

At the hearing the claimant’s solicitors argued that the offer

had clearly been a mistake and they should be allowed to

withdraw it.

We instructed Ezra MacDonald of Pump Court Chambers

and argued that:

• (1) “Mistake” has to mean “mistake in law”

• (2) The judgment of Pitchford J in Hilton International v

Smith was binding: a party which makes a mistake may

well be fixed with the consequences of that mistake (in

that case, where the mistake was to pay in £46,000,

rather than £6,000, the paying party had still been fixed

with that error of judgment), and

• (3) It would be disproportionate and counter to the

overriding objective to grant the application, the amount

in dispute being, at most, £500.

The judge accepted our submissions, dismissed the

application and awarded costs to us. Part 36 is a strict

regime and it would create uncertainty were parties able too

readily to withdraw their offers. This would be counter to the

purpose of Part 36.

For further information regarding this matter please contact

Lindsey Bartling

T: 020 7462 3456

E: [email protected]

Pre-action disclosure application de-fendedTC v AC & A Insurance Company

Newcastle-upon-Tyne County Court

8 April 2014

This claim arose out of a road traffic accident in which our

client’s insured was alleged to have driven into the rear of a

third party vehicle. The insured’s mother was a passenger in

the insured’s vehicle and had intimated a claim.

The claimant’s solicitors sought substantial pre-action

disclosure from our client, which was refused, and we were

instructed when the claimant’s solicitors made a pre-action

disclosure application.

The claimant’s application was two-fold:

• (1) Documents relating to engineering evidence, and

• (2) Any other documents which would be disclosable

in accordance with standard disclosure if proceedings

were issued.

We were successful in our opposition and our insurer client

was awarded costs. The judge commented in particular

that:

1. The criteria in 31.16 was not fulfilled as the claimant

should have no difficulty in pleading her case without

the requested disclosure. This is a straightforward RTA

claim and it would be disproportionate to order pre-

action disclosure.

2. Our client had legitimate concerns, which were not

fanciful, and were raised in correspondence. It is a

realistic concern that, in an era where sham accidents

take place up and down the country, that unless the

claimant makes her case clear whatever is disclosed

by the second defendant may be used to tailor the

claimant’s account of the accident.

3. It was a bit rich of the claimant to accuse the second

defendant of failing to comply with the spirit of the

pre-action protocol by refusing to put its cards on the

Page 13: Legal Watch - Fraud - July 2014

table when the claimant has refused to answer Part

18 questions. In any event the documents referred to

specifically in the pre-action protocol would not apply

in this case because there is no issue over where the

damage is on the vehicles.

4. The claimant had been given an opportunity to withdraw

the application and to walk away with the engineering

evidence she requested. She had refused that

opportunity and maintained that she should be entitled

to wide-ranging disclosure of documents.

5. Having put the concerns to the claimant in

correspondence (without disclosing the full extent and

detail of the concerns to the claimant), it should have

been apparent that engineering evidence would not

resolve the dispute.

It is worth noting that our letter setting out our concerns

and why the engineering evidence would not resolve the

dispute made a crucial difference to the outcome of this

application. By clarifying the damage issue and making it

clear to the claimant that we had concerns with the claim

without giving the game away and tipping her off, we were

in a much stronger position to argue that the claimant had

acted unreasonably, which ultimately led to the application

being dismissed and an order for costs in our favour.

For further information regarding this matter please contact

Karen Mann

T: 020 7462 3469

E: [email protected]

Page 14: Legal Watch - Fraud - July 2014

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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Welcome to...Howard Chater and Emma Hayes

We welcome Howard and Emma to Greenwoods, both of

whom are based in our Milton Keynes office, having joined

from Keoghs.

Howard joins as an associate and has acted exclusively for

motor insurers for the past 35 years. Howard spent the last

eleven years within the Complex Fraud Team at Keoghs.

Outside of work, Howard’s interests include travel,

photography and music. He also follows the fortunes of

Spurs football club, but describes himself as being more of

a sympathiser than a supporter!

Emma joins as the head of our Intelligence Team. She has

worked in insurance since 2002 and became involved in

intelligence work in 2006, first as an analyst and later as a

team leader at Keoghs before moving to Greenwoods.

Emma describes herself as a passionate advocate of how

much assistance intelligence can provide to the insurance

industry and she considers herself to have one of the most

interesting jobs around.

Emma previously lived in Greece for 11 years and maintains

an ability to speak Greek well.

In her spare time, Emma likes to spend time with her family.

She has three children who have a constant stream of ideas

of how to fill her time.