Noble v Owens 16.03.11
In 2003 Mr Noble was seriously injured when his motorbike collided with a car driven by the Defendant. Liability was not disputed. In March 2008 damages were assessed by Mr Justice Field at just under £3.4m. With his damages Mr Noble brought a property with adjoining land in Dorset which he set about developing. In doing so he caused some disharmony with his neighbour who, after learning that Mr Noble had received a large insurance pay-out, contacted the Insurance Fraud Bureau (IFB), to report that he was not disabled. The IFB passed on the information to Mr Owen’s insurers, Direct Line.
Direct Line instructed enquiry agents to carry out surveillance on Mr Noble. As a result of the surveillance the Defendant obtained an ex parte injunction from Field J freezing most of Mr Noble’s damages and was also granted permission to appeal against the award of damages.
In March 2010 the Court of Appeal held that, given the evidence (which Mr Noble sought to explain), it would be wrong in law and unfair for the award of damages to be set aside unless and until fraud had been proved. The issue of fraud was referred back for trial by Field J.
It was for the Defendant to prove that Mr Noble obtained a substantial part of the damages awarded by dishonestly and knowingly misrepresenting the true level of his disability to the experts and the court at the time of his trial. The standard of proof was the balance of probabilities, although the more serious the allegation the stronger should be the evidence.
In a judgment of some 25 pages, Field J considered the detailed evidence adduced by both parties at the trial and subsequently. Whilst he had reservations about some aspects of Mr Noble’s evidence, and the evidence of some of the witnesses called on his behalf, at the original quantum trial Mr Noble was determined to walk unaided and may have been confident that somehow he would succeed in doing so. However, he had not dishonestly concealed from the Court or the experts the then true state of his disability or dishonestly emphasised his disability. Consequently, since he had not dishonestly misled the Court at the quantum trial, the re-assessment of damages was dismissed.
Following the decision of the Court of Appeal last year, it seemed that a message had been sent to potential fraudsters that their damages were not safe even after final assessment and they could still be pulled back to court by diligent insurers. This decision however highlights the difficulties that insurers face in seeking to prove that claimants have acted fraudulently in seeking to mislead the experts and the court. Defendants and their insurers should in particular bear in mind that a court will require very strong evidence of fraud. However, provided the post trial case is properly built up and developed this should not preclude insurers from pursuing such cases and being successful.
On a more positive note in relation to fraud, the Defendant in Summers v Fairclough Homes Ltd  has been given permission to appeal to the Supreme Court. This is a case where the Defendant is arguing that, in an appropriate case, the entirety of a third party claimant’s personal injury claim (including the honest part) should be struck out if the claimant has fraudulently exaggerated/fabricated a substantial part of it. This is contrary to previous authorities, including the decisions of the Court of Appeal in BAA plc v Widlake  and Ul Haq and others v Shah , where it was made clear that a claimant will not be deprived of damages to which he is entitled because he has fraudulently attempted to obtain more than his entitlement. The Supreme Court hearing in Summers is anticipated in early 2012.