The courts have recently considered two cases involving fraud arising from road traffic accidents.  

The first case is helpful to insurers and demonstrates the courts' disapproval where personal injuries are falsified.

The second case will be less well received by those representing defendants. It illustrates a judicial reluctance to punish genuine claimants where they have assisted in a fraud related to the claim.  

Carol Walton v Joanne Kirk [2009] EWCH 703 (QB)

In a landmark decision for insurers a claimant was found to be in contempt of court as a result of false statements she made during the course of personal injury proceedings.  

Contempt of Court – the relevant law

CPR32.14 allows for the possibility of a person being prosecuted for contempt of court if he or she makes or causes to be made a false statement in a document which is supported by a Statement of Truth.  

In order to succeed with such an application the applicant has the burden of proving contempt to the criminal standards.  

Background  

The claimant brought a claim for personal injuries sustained in a minor road traffic accident. She claimed damages in the region of £800k. The claimant relied upon expert evidence which suggested that she had developed fibromyalgia.  

The defendant's expert doubted the diagnosis of fibromyalgia and concluded that she did not have the condition.  

The defendant obtained surveillance footage on the claimant which showed her walking, driving and shopping. Following disclosure of this the claimant served witness evidence responding to and explaining the contents of the footage.  

The claimant's claim was subsequently settled for £25k.  

Proceedings for contempt of court

Proceedings for contempt of court were subsequently brought against the claimant. Whilst the bulk of the allegations against her failed she was found in contempt on two grounds of lying in court documents. On this basis the claimant was held in contempt of court. She was ordered to pay her own £125k legal bill, a £2.5k fine for contempt and half the defendant's costs  

Conclusion  

This is a positive judgment for insurers in cases where they have reasons to suspect that a claimant is lying. It reflects the strong public interest in penalties for dishonest personal injury claims.

The judgment does, however, give scope for a claimant to respond that they were not lying but were merely 'exaggerating'. Coulson J concedes in his summing up that – in light of the high standard of proof – he had on occasions felt it appropriate to give the claimant the benefit of the doubt in considering the allegations of contempt through gross exaggerating.

Contempt of Court – guidance for insurers

In order to succeed in an action for contempt of court insurers must prove each of the following three elements beyond a reasonable doubt  

  1. the falsity of the statement in question;  
  2. that the statement has interfered with the course of justice; and  
  3. when the false statement was made the marker had no honest belief in its truth.

Shah v Ul-Haq, Khatoon and Parveen [2009] EWCA Civ 542

In contrast to Walton v Kirk, the courts have taken a more lenient approach to claimants where they been found to be assisting in fraud. Shah v Ul-Haq, Khatoon and Parveen tackled the issue of whether to strike out genuine claims on the grounds that the claimants had been involved in a fraud upon the court in respect of an associated claim.

Background

In May 2006 the defendant, Mrs Anita Shah, negligently drove her Peugeot car into the rear of Mr Wasim Ul-Haq's Rover. Mr Ul-Haq and his wife, along with their two children, were in the car at the time. The car sustained minor damage while Mr Ul-Haq and his wife claimed they suffered minor whiplash injuries. Mr Ul-Haq’s mother, Mrs Khatoon, alleged that she too had been in the car and had also suffered a whiplash injury. Mr Ul-Haq and his wife gave evidence to support Mrs Khatoon's claim.

Decision not to Strike Out Claims

The court of first instance found that Mrs Khatoon had neither been a passenger nor suffered injuries. It also held that Mr Ul-Haq and his wife had conspired to support Mrs Khatoon's fraudulent claim. While costs were awarded against the claimants the judge considered Mr Ul-Haq's and his wife's injuries to have been genuine. He refused to strike out their claims under the court's case management powers under CPR3.4(2) and awarded damages for Mr Ul-Haq and his wife.

The decision not to strike out the claims was appealed to the Court of Appeal but the appeal was dismissed. It was pointed out to the Court of Appeal that fraudulent claims were a major problem for the courts and insurance companies. However, it was held that a claimant will not be deprived of damages because he has fraudulently attempted to obtain more than his entitlement. By extension, a claimant should not be deprived of his claim where he has lied to support the claim of another.

Conclusion

The case will not be welcomed by those defending similar claims. In effect, a claimant will not be punished with strike out where he has a genuine claim even if there are related allegations of fraud. To moderate this the courts will take a harsher line on costs and are prepared to penalise claimants by this means, as happened in Shah v Ul-Haq, Khatoon and Parveen.