A claimant who brought a late notified personal injury claim and who treated the signing of statements of truth “with impunity and in fact contempt”, had his claim dismissed and was ordered to pay the defendant’s costs. Hearing the trial of the claimant’s action in December last year, District Judge Avent, heard the claimant suggest that he had received guidance about answering Part 18 questions, posed by the defendant, from a claims management company. Whilst he stated in one of his responses that he could not remember whether he had received any compensation as a result of an earlier accident, he admitted at trial that he had received £1,500, but he alleged that the claims management company told him that he should say that he could not remember the details.

DWF Director, Jewels Chamberlain looks at the outcome of this case, in which Senior Paralegal Laura Lavery acted for Markerstudy and which saw the Judge deliver a stinging criticism, of the cavalier way that the claimant approached the signing of statements of truth and which led the court to make a finding of fundamental dishonesty and order the claimant to pay the defendant’s costs.

Background

The claimant, who was a self-employed taxi driver, alleged that he had been involved in an accident on 9 November 2013, when has was struck from behind by the defendant’s motor vehicle. He alleged that he was injured in the accident and claimed compensation for those injuries, also advancing a claim for treatment costs in the sum of nearly £800. Whilst negligence was admitted by the defendant, the claimant was put to strict proof of his claim.

The claimant relied upon a medical report that provided for the claimant to have made a full recovery within 12 months of the accident taking place.

The claim was tried before District Judge Avent on 3 December 2015, at the County Court in Central London.

Facts

The claimant had at one point instructed another firm of solicitors to deal with his claim, but when those solicitors admitted a Claims Notification Form (CNF) to the Portal, they stated the accident date as being different to 9 November. When asked about this disparity, the claimant suggested that he had only told the first firm of solicitors that the accident had occurred around that date, rather than that being the date of the accident itself.

During the course of the litigation, the defendant had posed a number of Part 18 questions to the claimant about his pre-accident history and whether he had received assistance in answering the questions (and, if so, from whom). The claimant in his answers (which were signed by a statement of truth) stated that he could not remember whether he received any compensation for a previous accident, but in court, 9 months after signing the Part 18 response, he confirmed that he had received £1,500 for an injury which had lasted for 6 months and that a claims management company had assisted him with his Part 18 response.

The claimant suggested at trial, that the claims management company had assisted him in answering most of the documents concerned with the case.

The claimant suggested that his injury was severe for the first eight weeks and that he did not make a full recovery until 9 months post accident. Despite attending upon his GP on a number of occasions after the accident, the claimant did not mention to his GP at that time that he was suffering from neck and back pain, following the accident in November and despite the claimant suggesting that he was taking pain killers every four hours at that stage. The claimant did not mention to his expert that he had been involved in other accidents and the medical expert did not check the claimant’s medical records.

During the course of the litigation, the defendant raised Part 35 questions with the claimant’s medical expert, with a view to clarifying his opinion and prognosis. Whilst the expert had stated that the claimant’s symptoms were severe for only 3 weeks (contrasting with what the claimant had said in court) the expert went on to give a prognosis period of 12 months and did not say at what degree that symptoms would have abated.

As a result of his symptoms the claimant claimed that he could not attend the gym, whereas pre-accident he said that he would attend his gym 2 to 3 times a week. The enquiries made by the defendant with the gym, resulted in the gym confirming that they had no records, past or present to suggest that claimant was a member. In response to this discovery, the claimant suggested that this might be because, he looked to join the gym as Mohammed Azizur Tajud. Although the claimant could have obtained records from the gym in support of his claim, using his pin number and his email address, he confirmed that he chose not to.

The claimant suggested that the accident was a rear end shunt, when the assessor’s report, prepared to estimate the cost of repairs to his vehicle suggested that the impact had been to the rear offside of his vehicle and not to the rear.

The claimant suggested that as a result of his injuries, he had had to work at reduced earnings capacity for 8 weeks, yet he did not advance a claim for loss of earnings.

A claim for physiotherapy was advanced by the claimant, although the claimant stated that he did not receive any treatment, even though he had signed a statement of truth to a schedule of special damages, claiming nearly £800 for physiotherapy.

Findings

Giving judgment and dismissing the claim, District Judge Avent held that:

  • The claimant was a “wholly unconvincing and unreliable witness”.

  • He had not confirmed the amount of compensation he had received from a previous accident and had received guidance on answering the Part 18 questions from a claims management company.

  • He had treated statements of truth with impunity and contempt; and

  • Had deliberately signed statements of truth when he either knew or could not honestly believe that they were true.

  • The claimant had permitted his solicitors to sign a statement of truth to a schedule of special damages that “was patently untrue” and that this should have been something that the solicitors picked up on as they prepared the schedule of special damages and should have been aware that a ‘pro forma invoice’ was being relied upon.

  • The claimant decided not to obtain documents to corroborate his claim for loss of gym membership even though he knew that they were necessary.

  • The injury that the claimant suggested he had sustained left “no footprint or trace” in any of his medical records.

  • The claimant did not see fit to mention the other accidents that he had been involved in to his medical expert; and

  • The medical expert’s response to the defendant’s perfectly reasonable and sensible Part 35 questions about the content of his report was “verging on being deliberately obstructive” and the expert had sought to “sidestep” the questions.

  • The expert report was not particularly helpful.

Following an application by the defendant that the claimant should lose QOCS protection on the basis that the claimant had been fundamentally dishonest for the purpose of CPR r.44.16, the District Judge granted that application and ordered that the claimant pay the defendant’s costs, which were assessed at nearly £4,000.

Comment

This was a case where the claimant only started to row back from his position at trial and he then sought to blame others for the way that his claim had been presented. In total he signed, or authorised the signing of six documents that contained false statements of truth.

His evidence that he took guidance from answering Part 18 questions about his claims history from the claims management company and that they told him to claim he could not remember the amount of compensation that he had received for an earlier accident, provide some insight into the way that some CMCs seek to influence litigation and the outcome of cases by interfering with the course of justice, something that District Judge Avent said he would not tolerate. To make matters worse, the CMC in this instance, do not appear to be a regulated CMC.

This case highlights the importance of having a good late notified claims processes in place and why the Insurance Fraud Taskforce recommended to the government that the burden of proof be changed in late claims, so that it is necessary for claimants to prove that they were injured, when they present their claims a year or more after the accident.

The defendant in this case could not square the severe phase of the symptoms lasting 3 weeks, with the expert’s opinion that the claimant would not make a full recovery until 12 months post accident. The defendant raised a number of Part 35 questions with the claimant’s expert in this case and the expert’s failure to address those questions, rightly drew criticism from the District Judge.

Markerstudy estimate that the claim would have been worth c£13,000 had they lost at trial.