An attempt to bring a claim for personal injury by an individual, who was not an occupant at the time that two vehicles came into contact with each other, failed and was condemned as being the “worst kind of opportunism” by the District Judge hearing the case. On the basis that the claim was fundamentally dishonest, the Defendant successfully argued that the Claimant should lose QOCS protection and pay the costs of defending the claim.

Taj Rasick had claimed that he had been sat in a vehicle when contact took place and that he had sustained injury as a result. Despite receiving support in his claim from his wife, who also claimed to be injured, in what was in any event a very minor bump, the Judge accepted the evidence from the Defendant’s employee that Taj Rasick had not been in the vehicle when contact took place. Senior Solicitor, Natalie Brookfield looks at the outcome in this case, where any future claim from the Claimant’s wife would be resisted by the Defendant under Section 57 of the Criminal Justice and Courts Act 2015. 

Background

DWF LLP defended proceedings brought by Taj Rasick on behalf of Clear Channel International (UK) Ltd and Royal and Sun Alliance plc. On 16th June 2014 the Defendant’s employee, reversed his vehicle off Barking Road in East London into a parked vehicle, owned by Taj Rasick. Rasick brought a claim for personal injury, as did his wife, Massuda Rasick, who also supported her husband’s claim.

Facts

The Court heard the Defendant’s employee describe a very minor impact, after he had carried out a reversing manoeuvre and caused the rear of his employer’s vehicle to ‘touch’ the front of Taj Rasick’s parked vehicle.

From the outset, the employee’s evidence was that there were two occupants in the parked vehicle at the time that contact took place; one a woman and the other a young child of around 10 years of age. He told the Court how the two occupants exited the rear of the parked vehicle.  Given that the two occupants had both exited from the back of the vehicle, he then asked the woman as to the whereabouts of the driver of the vehicle, in response to which the woman pointed towards a parade of shops close by and said that the driver had gone in there. The Defendant’s employee described how he waited at the side of Taj Rasick’s vehicle with the female and after a few minutes Taj Rasick returned.

To the contrary, Taj Rasick told the court that he was sat in his vehicle with his wife and child eating his lunch, when the Defendant’s employee reversed into the front of his parked vehicle. Taj Rasick was supported by his wife, Massuda Rasick, who also intimated (but had not yet litigated) a claim for injury.  Although Massuda Rasick had provided a witness statement in support of her husband’s claim, she was debarred from giving oral evidence at the trial because her witness statement was found by DJ Pigram to not comply with the provisions for the translation of documents under the CPR. The Claimant also failed to make sure that an interpreter was present at court. 

Findings

Sitting at Bow County Court on 17th September 2015, District Judge Pigram dismissed Taj Rasick’s claim, having analysed the evidence in great detail and concluded by saying: 

I have no hesitation whatsoever in concluding that the Defendants' case is much more likely. I find as a fact that the Claimant was not in the car at the time of the collision and his injuries cannot be linked to the accident…

On an application by the Defendant that the Claimant should lose QOCS protection on the basis that he had been fundamentally dishonest in accordance with CPR r.44.16, DJ Pigram ordered that the Claimant should lose that protection because the Claimant had been guilty of:

'the worst kind of opportunism' and the claim was 'fundamental dishonesty of the most deplorable kind'

Accordingly the Claimant was ordered to pay the Defendant's costs pursuant to CPR r.44.16 and which were assessed in the sum of £7614.09.

Comment

This case highlights the effective use of the "fundamental dishonesty" QOCS exemption in order to ensure that the defendant was not left out of pocket, simply because the claim had been brought under the shield of the QOCS regime and helps tp dispels any perception that there might be that, because of the QOCS regime, claimants have nothing to lose in pursuing a claim.

Just as interestingly, the decision also puts pay to any attempt by Massuda Rasick to further her claim. Under Section 57 (1) (b) of the Criminal Justice and Courts Act 2015, a court must dismiss a genuine claim where a claimant has been fundamentally dishonest in a “related claim”. As such, were Massuda Rasick to commence proceedings, her claim would be defended on the basis that she attempted to support her husband’s fundamentally dishonesty “related claim” by providing a witness statement that supported his version of events.

Before the 2015 Act, where a party had fraudulently sought to support  a claim brought by another claimant (as was the case in Shah v Ul-Haq (2009)) and also brought a claim of their own, it was difficult to defend those claims as Summers v Fairclough was applied only exceptionally. The introduction of Section 57 should ensure that any claim brought by Mrs Rasick is dismissed and she will not be able to recover any damages. 

The decision demonstrates the impact of both fundamental dishonesty in the context of the QOCS regime and also how Section 57 might deployed against a claimant who supports a claim that is found to be fundamentally dishonest.  The two claims together would have been worth c£7,000 plus costs, had the insurer decided to meet them.