In this article, Richard Hackett reviews recent developments and emphasises the need for vigilance in looking out for any lack of honesty in claims brought against healthcare providers.
The dishonest claimant is a feature of the personal injury litigation landscape as never before. However, the courts are showing a willingness to take firm measures against those responsible for bogus or grossly exaggerated claims. Depending on the circumstances, these may include:
- Striking out of the claim
- Committal to prison for contempt of court
- Costs penalties and potentially a costs order against the dishonest claimant’s solicitors
Getting the evidence
The best evidence of fraud is, of course, surveillance showing a claimant undertaking some activity which they have previously suggested they are unable to do. However, before surveillance can be undertaken a prima facie case needs to be established to justify the intrusion, which might otherwise be a breach of the claimant’s human rights.
Claims handlers need to pay careful attention to inconsistencies between the claimant’s account of their symptoms and the contemporaneous medical records. Experts should be asked to comment on such matters and to consider in their own right whether the severity of symptoms described is genuinely explicable with reference to the injury sustained.
Of course, surveillance is also only appropriate where there is a realistic chance of identifying fraud. If the injury described is not one that would be outwardly obvious, then surveillance will not assist.
Striking out of the claim
In the 2012 case of Fari –v- Homes for Haringey, the claimant had a genuine claim for personal injury, having fallen over a cracked paving stone. Liability was admitted by the local authority. She claimed substantial damages (of approximately £750,000), on the basis that she had developed a severe knee problem resulting in loss of income. However, video footage obtained by the defendant showed no evidence of mobility problems.
The judge was satisfied that the claimant had grossly exaggerated the extent of her injury and concluded that this was an exceptional case which justified striking out the claim completely as an abuse of process.
Committal to prison for contempt of court
The most accessible route for a defendant (seeking to fight back against the dishonest claimant) continues to be an application to commit for contempt of court.
However, as illustrated by the decision in Royal & Sun Alliance Insurance -v- Kosky in 2013, courts do not readily commit for contempt. Although the Particulars of Claim had failed to mention a past history of symptoms relevant to the claim, the High Court decided that this was an insufficient basis on which to commit. The judge emphasised the need for the applicant to be able to specify a false statement and state clearly in what way it was untrue.
Costs order against the dishonest claimant’s solicitors
At the Trial of Rasoul –v- Linkevicius in October 2012, the case collapsed when it became apparent that the claim was fraudulent. The judge was persuaded that, if the claimant’s solicitors had acted competently, it would have been apparent to them at an early stage of proceedings that the claim was baseless. As they had brought the case to trial, the judge considered it appropriate to make an order that they pay the defendant’s wasted costs.
The NHSLA is alive to the possibility of fraud and will take appropriate action where indicated. We have made effective use of covert surveillance in several cases within the last year in order to expose a number of less than honest claimants. If, as a claims handler, you suspect dishonesty, notify your legal adviser in the case, who will be able to take appropriate action.