First Capital East Ltd v Ilmi and Arsim Plana [23.10.15]

We review a recent court decision, consider practical difficulties faced by defendants and highlight the resolve of the insurer involved to continue to fight fraudulent cases.

On 16 August 2013, Ilmi Plana’s civil claim was struck out as an abuse of the court’s process. This was on the basis that surveillance evidence had exposed as lies most of the assertions made by him as to his symptoms and their impact. The Judge directed that the case be transferred to the High Court to enable an application to be made for permission to bring contempt proceedings.

Kennedys represented the Defendant. View our full review of the civil claim. 

Subsequently, following a trip overseas, Ilmi Plana was arrested and stood trial at Southwark Crown Court on a charge of fraud. He was acquitted by the jury. There was then a second attempt to prosecute him, by the Department for Work and Pensions, for fraudulently claiming benefits by not disclosing his true care and mobility needs. This case was stayed as an abuse of the process of the court.

We then brought an application for permission to bring committal proceedings for contempt of court against him and his son, Arsim, who had provided evidence in support of his claim. In refusing this application, His Honour Judge Hughes stated that he did not believe that the acquittal by the jury was an absolute bar to permission being granted for committal proceedings. However, permission was unlikely to be granted except, for example, where material evidence was not before the jury or important new evidence had come to light.

Lessons to learn

Hughes J emphasised the lesson to be learnt, namely that applications for permission to bring contempt proceedings need to be made without any delay. The difficulty in this case was, as the judge recognised, that the civil process was frustrated by Plana’s actions of going overseas and the dependence on having to wait for the outcome of the criminal proceedings.

That frustration is compounded by the current effect of the Civil Procedure Rules (CPR), which do not provide a district or circuit judge (who hear the bulk of personal injury litigation) with the power to grant permission to grant leave to bring committal proceedings.

Hughes J therefore took the opportunity to direct the CPR Committee to consider revising the rules to allow applications arising out of country court proceedings to be referred to the High Court immediately. This is to be welcomed. Any step that assists streamlining the process to be able to deal with fraudulent claims immediately should be encouraged.

The judge’s decision to reject the application was, at the end of the day, an extension of his discretion. Some may disagree with the outcome; others will follow the logic applied. Defendant insurer, FirstGroup plc, are hugely disappointed with this decision and struggle to understand how it is in the public interest. We empathise with that response. Following AXA Insurance announcing success in two fraudulent injury claims, FirstGroup remains determined to fight fraudulent cases and will act with the same resolve when faced with the next “Mr Plana”.

Ensuring that insurers have a proactive strategy in place is vital. Accepting that the general approach now taken by courts is to be alive (and willing) to making findings of fraud is encouraging. One can but hope that the message that fraud will not be tolerated will become ever stronger and that the legal system which supports it, all the more resilient.