Plana v First Capital East Ltd [16.08.13]

Defendant represented by Kennedys successful in striking out claim for over £600,000 where Claimant’s fraud exposed by surveillance evidence.

Implications

This decision follows on from the judgment of the Supreme Court in Summers v Fairclough Homes Ltd [2012]. The Supreme Court found that the courts do have the power to strike out a claim for abuse of process, even though, given the facts and timing of the application in that case, the Defendant’s application was unsuccessful.

The guidance provided by the Supreme Court has been put into practice by Central London County Court in two previous cases, where claims were struck out on the basis that surveillance evidence showed that the Claimants had significantly exaggerated their claims.

In Kennedys' submissions to the Court in this case, we argued that, following the Jackson reforms, when considering applications such as this, the issue of proportionality in terms of cost and court resources should be even higher material considerations for the court to weigh in the balance.

This case serves to underline the importance of a proactive counter-fraud case strategy in managing costs and positively influencing outcomes. The judgment in Summers, now underlined by this case and others, together with the Jackson reforms create an arsenal for defendants to tackle fraudulent claims on their terms.

Background

The claim arose from an incident on 10 December 2007 in the Defendant’s Hackney bus depot, where the Claimant was employed as a bus driver. The Claimant alleged that, in the course of moving some signs, he slipped and sustained a blow to the head. He alleged that he suffered a traumatic brain injury, such that he needed constant supervision, was unable to drive and had been rendered unable to return to any work. Liability was admitted on a 90/10 basis in the Claimant's favour and interim payments made of £125,000.

Surveillance evidence obtained by the Defendant exposed as lies most of the assertions made by the Claimant as to his symptoms and their impact on him. For example, during the course of the footage, the Claimant was seen to be working at a car wash business and able to drive.

The Defendant made an application to strike out the Claimant's claim.

Decision

His Honour Judge Collender, sitting at Central London County Court, struck out the Claimant's claim as an abuse of the court’s process. In doing so, he rejected the Claimant's explanation of the surveillance evidence, which was that it showed innocent and isolated incidents of him working.

The Claimant was also ordered to repay to the Defendant the interim payments made, and to pay the Defendant’s costs, to be assessed on an indemnity basis.

The action has been transferred to the High Court for the purposes of an application by the Defendant for permission to bring proceedings against the Claimant for contempt of court.