Alam & Ors v Blackwell County Court at Coventry 01/03/2016
Claimants, who had all lied in an attempt to pursue claims for personal injury from a deliberately induced collision, were ordered to pay a total of £40,000 in exemplary damages after the Judge concluded that the Claimants had founded their action in the tort of deceit. The collision occurred after the Mitsubishi carrying the Claimants had turned left in front of the Defendant’s vehicle, even though that vehicle was indicating right, and then came to an abrupt halt.
Finding that all the Claimants were enthusiastic participants in the enterprise, His Honour Judge Gregory ordered each Claimant to pay £10,000 and the Claimants were ordered to pay the Defendant’s costs on an indemnity basis. Acting for the Defendant’s insurers, Octagon, DWF Paralegal, Ben Harper discusses how the Judge came to the conclusion that he did and the basis upon which he calculated the award for exemplary damages.
The claims all arose out of a road traffic accident which occurred at a roundabout near junction 7 of the M6 in Birmingham, on Mother’s Day in 2014, when a Mitsubishi driven by the First Claimant, Afzaal Bin Alam collided with a Vauxhall Astra van driven by the Defendant, Terence Blackwell.
On the day of the accident, the First Claimant alleged that he was travelling from his sister’s home, to visit a friend’s aunt, and as he made his way around a large roundabout, the traffic ahead in his lane slowed causing him to gently apply his brakes. He alleged that he was then struck with force from the rear by the Defendant’s van. The First Claimant’s account was supported by all three of his passengers, who had each brought their own claims for personal injury.
In response to the claims, the Defendant gave a very different account. He alleged that he had been travelling around the roundabout when the Mitsubishi had overtaken him on his right. His evidence was that whilst the driver of the Mitsubishi was signalling right in the adjacent lane, the vehicle then suddenly turned to the left into his path and slammed on his brakes making a collision inevitable. He was clear that there was no other traffic around at the time and no genuine reason whatsoever for the actions of the First Claimant.
In the immediate aftermath of the accident the Defendant was asked to sign a piece of paper upon which the Claimants had written a short statement holding the Defendant liable, which the Defendant refused to sign.
All four Claimant brought proceedings, claiming damages for personal injury. The defence pleaded that the claims were a fraud and included a counterclaim in the tort of deceit which sought exemplary damages against all four Claimants. Exemplary damages are essentially punitive in nature and are available where a Defendant can bring himself within one of the three narrowly defined categories identified by the House of Lords in Rookes v Barnard  AC 1129 and which are:
- cases of oppressive, arbitrary or unconstitutional actions by the servants of government
- where the party's conduct was 'calculated' to make a profit for himself; and
- where a statute expressly authorises the same.
Essentially, the Defendant must demonstrate that the Claimant was engaged in deceitful conduct which was designed to generate a profit.
In Kuddus v Chief Constable of Leicestershire  2 AC 122, the House of Lords clarified that exemplary damages were not confined to any particular cause or causes of action, provided that one of the Rookes criteria was met.
The Trial of all the Claimants’ claims was heard by HHJ Gregory at the County Court at Coventry on 1 March, with Jamie Marriott of Cobden House Chambers representing the Defendant.
The Claimants all alleged that they were on their way to visit the Third Claimant’s aunt at the time of the accident, but none of them, including the Third Claimant were able to provide an address, or location for the said aunt. During the course of giving evidence, the Claimants offered a different location for the collision, stating that the accident had actually taken place on a different section of the roundabout.
The First Claimant’s evidence was that he had braked due to other cars ahead in his lane slowing down. However, other documentary evidence exchanged during the course of the litigation suggested that he had said that he had slowed down to allow another vehicle into his lane, suggesting a discrepancy.
There were also discrepancies in the First Claimant’s account of his medical and claims histories. Despite claiming not to have had problems in his neck prior to the index accident, the First Claimant had in fact a history of neck symptoms, spanning several years prior to the accident. The First Claimant claimed to have forgotten about four previous claims that he had submitted.
The First Claimant had told his medical expert that he had taken two days off work as a result of the accident and repeated this claim in court, yet his CNF stated that he had not taken any time off work. His own brother, the Fourth Claimant, with whom he worked as a pharmacy dispenser, clearly recalled that they had worked together on the day after the accident.
The Second Claimant (who gave evidence via video link from prison due to being convicted of assault in 2015), had told his medical expert that he had been off work for one week following the accident, when actually his CNF stated that he not had any time off work. His personnel records demonstrated that he had worked the same hours in the week prior to the collision as he had in the week following it.
The Third and Fourth Claimant both claimed that they knew little about how the accident happened, with the Third Claimant saying he was not paying attention and the Fourth Claimant saying that he was playing on his phone at the time. Both of these Claimants gave differing accounts of how the accident occurred to their medical experts, when compared with their evidence.
Each Claimant’s medical report had recommended a course of physiotherapy yet none of the Claimants had undergone any.
In giving judgment, HHJ Gregory found that:
- The Claimants had all lied to him.
- If the accident occurred as the Defendant alleged, then none of the passengers could have failed to have been aware of what was happening in the lead up to the impact.
- The support that the passengers had sought to give to the First Claimant was such as to require the Court to infer that, if fraud had been committed then each Claimant was likely to be a party to it.
- The Judge did not accept that the First Claimant would have forgotten about four previous claims.
- The accident had indeed been deliberately induced when the First Claimant drove his Mitsubishi across the path of the Defendant’s Astra and then slammed on his brakes to cause a collision and create the conditions for him and his three co-Claimants to be able to pursue claims for personal injury.
- The accident damage to the vehicles was more supportive of the Defendant’s version of events.
In light of his findings, the Judge found that the Defendant had established the action in deceit against each of the Claimants. He found the Claimants had each manufactured a claim and lied about its merits to secure gain for themselves and to cause loss to the Defendant in terms of damages and costs.
In assessing the level of the award the Judge observed that the purpose of the award was punitive in nature and he observed:
- The total value of the claims for were in the region of £10k; and
- The Claimant’s costs budget had been approved in the region of £46k;
- The Defendant’s budget was in the region of £16k.
Having considered the total loss that would have been inflicted upon the Defendant, had the fraud been successful, His Honour Judge Gregory determined that the appropriate order was to make an award in favour of the Defendant against the Claimants in the sum of £10,000 each, the total award for exemplary damages was therefore £40,000 which was payable within 14 days.
The Judge stated that he had made no distinction between the driver and the passengers because they were each enthusiastic participants in the enterprise.
Finally, the Judge awarded the Defendant his costs of the claim and the counterclaim on the indemnity basis.
Whilst the awarding of exemplary damages in motor fraud cases is not new, the sum awarded by HHJ Gregory is as high an award as we have known and His Honour’s calculation for the award was based on his consideration of the loss that the Claimants had sought to inflict upon the Defendant, had they been successful in their fraud.
Advancing a claim for exemplary damages might not be appropriate tactically in every case, but this case demonstrates that Judges are prepared to make considerable awards for exemplary damages in the right cases.