15 January 2016

Central London County Court

Before Recorder Bowers QC

Yavuz v Matousek and LV=

Gulbudak and Gulbudak v Nicema and LV=

Golding v Mudra and LV=

Kaya v Cerlinsky and LV=

Similar fact evidence that demonstrated multiple similarities between 12 suspicious claims was deployed by LV= and led to those claims being successfully defended by DWF. The claims were tried in the Central London County Court before Mr Recorder Bowers QC, with four of the Claimants discontinuing on the first day of the trial.  Recorder Bowers QC dismissed the remaining claim having concluded that there were many ‘suspicious aspects’ and that the Claimant should not be believed.

DWF Associate, Marsha Crosland, who represented LV= in the defence of those claims, sets out the nature of the similar fact evidence which led to the successful conclusion and saw LV= being given permission to pursue a wasted costs application against the Claimants’ solicitors.

Background

The five Claimants brought claims arising out of four accidents which allegedly occurred over a two month period, between September and November 2011. A total of 12 injury claims were intimated from the four alleged accidents. The drivers and one of the passengers (Gulbudak) issued in 2012 and 2013 and the remaining seven passengers issued in autumn 2014, shortly before the expiry of the relevant limitation periods. 

The main claims from the four drivers and one passenger (‘the main action’) were case managed and listed together for a five day trial before a single judge, commencing on 11 January 2016.

If LV= lost the cases in the main action, they stood to potentially pay out approximately £450,000 in damages and costs across all the claims. 

Similar fact evidence

LV= carried out numerous enquiries and checks and as a result of those investigations was able to demonstrate a number of similar facts, which included:

  1. All four alleged accidents occurred within a period of two months of each other.
  2. All policyholders incepted the policy of insurance in the days before the alleged accidents taking place.
  3. All policyholders stated in their proposal form that they were over the age of 50, employed as cleaners and living outside of London.
  4. The policies were set up either using the same email address and/or bank account details;
  5. In all the cases, LV= had good grounds for believing that the policyholder never existed.
  6. All alleged accidents featured a non-fault vehicle, carrying multiple occupants, all of whom sought damages for personal injury.
  7. All 12 Claimants were examined by the same medical expert, on the same date.
  8. All 12 Claimants sought the services of the same accident management company.
  9. All the drivers brought a claim for credit hire, having hired with the same hire company, which were subsequently discontinued prior to the trial.
  10. Each of the alleged accidents occurred over 80 miles away from each of the alleged home addresses of the insureds, all in a small area of North London.
  11. Two of the Claimants in separate accidents were related to one another.

The similar fact evidence was relied upon at the trial before Recorder Bowers QC.

Four of the Claimants discontinued their claims on the first day of the trial. Golding chose to carry on.

The trial

On the day of the accident, Golding claimed he was on his way to visit his friend, “Omar”. Golding stated that as he was travelling along Bull Lane, when he was struck by a vehicle that had come out of Shaftesbury Avenue, on his left. At the time of the collision, Golding alleged that he was accompanied by two passengers, Ms Bailey and Ms Yacovos.

After the collision, Golding hired a vehicle as a replacement for his own. The hire invoice stated that he hired a BMW ‘5-series’, but Golding admitted that he had been given three hire vehicles, none of them a BMW.

Golding chose not to call evidence his passengers, even though the Judge invited him to do so. Even, in the case of Ms Yacovos, turning down the Recorder’s invitation to serve her with a witness summons.

Golding, who was described by the Judge as “a resourceful individual who dabbled in the black economy as a car dealer” accepted in evidence that there must have been some attempt at defrauding the insurers, but that he was an innocent victim.

Judgment

Having heard the evidence, Recorder Bowers QC dismissed the remaining claim on the basis that he had a number of suspicions about it, but that the four main ones were:

  • Golding had said he was following his sat-nav, but it was clear that the route that would have been prescribed by a sat-nav wouldn't have taken him near the site of the accident. Admittedly he did not know the area but there was no suggestion that the sat-nav (which was a Tom Tom) was not working properly or had been set to avoid heavy traffic.
  • The evidence as to how Golding came by the accident management company was contradictory. He said in one account he had a business card in his car and in another that he was given the card by a passer-by after the accident.
  • After the accident, it was suggested that his friend, Omar, drove him and Ms. Bailey back home down to south London, whilst the 2 year old child of his friend and Ms Yacovos were abandoned with a neighbour. It was demonstrated in cross-examination that they would not have returned back to their homes until 11.15pm and, whilst that was possible, the Judge found it most improbable.
  • It was suggested that Ms Yacovos was in serious pain and yet Mr Golding didn't notice this.

In addition, the Judge concluded that he found it surprising that Golding would not have known the surname of “Omar”. Golding would have also had access to several cars under his policy, yet chose to hire an alternative.

In arriving at his conclusions, the Judge drew reference to the judgment in the Azimi cases, where DWF also acted and the comments of HHJ Mitchell:

Finally, I return to the absence of witnesses who are in the cars. I have made comments in some of the judgments and I have said this before: solicitors who bring these cases should think long and hard, particularly when fraud is pleaded, before putting evidence before a Court where it is clear that there is, for example, a passenger who has not been called. It is or may be a pointer to the fact that the accident is staged and the reason they are not being called is because they are in some way involved in the fraud. In my judgment, it could be an abuse of process. In this case, apart from the findings that seven witnesses were not in the cars, I have counted eight witnesses who could and probably should have given evidence.

Endorsing those words, the Recorder went on to say there was “…a dearth of documentation one would expect to find if there was a genuine accident”.

The remaining Claimant had not discharged the burden of proof and he was ordered to pay LV='s costs of the action on the standard basis.

LV= applied for a wasted costs order against the Claimants’ solicitors in respect of the discontinued claims which the Judge ordered to be heard at a later date.

Comment

This case highlights how similar fact evidence can be deployed to defend suspicious claims and the courts are now very familiar with defendants presenting this kind of evidence.

Many claimants pursuing these kinds of claims are prepared to enter into a game of brinkmanship, as evidenced by four of the Claimants only discontinuing on the first day of the trial.

It was surprising that Golding did not call any evidence to verify his claim. A lack of documentary evidence was also fatal here: there was no documentary evidence in support of the claim for repairs, and despite pursuing a claim for recovery charges, Golding could not produce any documents given to him by the recovery agent at the scene.

Marcus Grant of Temple Gardens Chambers represented LV= at trial.