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News | Tue 14th Nov, 2023
Those who are instructed to defend against claims of injury and other special damages, such as credit hire and rehabilitation claims, are acutely aware of the burden placed on the defence in alleging Fundamental Dishonesty. Whilst on paper, there may not be enough to expressly plead fraud or dishonesty, it typically will come down to the appetite of the insurer as to whether to seek settlement and reduce exposure to costs or to gamble the chances at trial in the hope of dismissal of the claim (albeit with unenforceable QWOCS costs) or of Fundamental Dishonesty being found, with enforceable costs.
I set out three recent examples of Fundamental Dishonesty findings, within a few weeks of each other, in which I was instructed for the Defence:
Allah Ditta v RSA Insurance – Huddersfield CC 15.9.23 DJ Akers
I was instructed by Craig Budworth at DWF to defend at trial. The Claimant pleaded a claim of up to £47,760, including plated credit hire over 141 days of £31,902; store and recovery over 119 days of £5,358, PAV of £6,000, PSLA 18 months whiplash, supported by Claimant GP and Orthopaedic Consultant experts.
C was on a private taxi hire school run, with 2 school child passengers in the rear. C claimed to have slowed and stopped in order to allow a woman and child to cross a zebra crossing in Dewsbury, West Yorkshire. A rear end collision occurred. D was adamant that there were no such pedestrians at the zebra crossing. C had slammed to a halt for no apparent reason.
After cross examination as to the collision facts and exposure of wider inconsistencies, it was found that there were indeed no such pedestrians at or on the zebra crossing. C had deliberately staged and induced the collision. This goes to show the high stakes involved, both in monetary terms and the disturbing potential for injury to the innocent D and C’s school run child passengers.
Tabbasam Iftikhar v D1 and Advantage Insurance – Birmingham CC 6.9 & 17.10.23 HHJ Watson
I was instructed by Brendan Hill at HF to defend at trial. C claimed £105,156 credit hire, £10,632 storage and recovery. C had initially pleaded a PI claim, including physiotherapy, but subsequently discontinued general damages – though he claimed QWOCS protection at trial.
C claimed that a neighbour from his street negligently crashed into his car on his street. C claimed to have had discussion with D at the scene. At trial, C repeatedly used the phrase in accusing D, that “I am 100 million % sure it was him”. Both C’s and D’s engineering experts by joint report, opined inconsistent damage compared to C’s claim. In order to explain this away, C claimed that D had had his car repaired prior to the engineers inspections and at trial for the first time he claimed that he had seen that D’s car had been repaired.
After hearing the evidence from D and cross examination of C concerning the index allegations and wider evidence, the Judge found expressly that there was no such collision between C and D vehicles. C’s claim was Fundamentally Dishonest. Whether QWOCS protection would have applied was academic in the circumstances and was not fully explored in further submissions, as costs were enforceable either way.
Lord John Faversham v NFU – Peterborough CC 25.10.23 DJ Falvey
I was instructed in this matter for the Defence by Steven Milward at DWF. At stake was a PSLA only claim, pleaded up to £10,000, with a GP and Orthopaedic Consultant opinions in support of a 2 year whiplash injury.
Breach of duty was admitted for a reversing lorry into C car. D driver played no part in the proceedings. C claimed in one version that as a result, he and his car were dragged back 50 yards, though reduced this to 15 meters at trial. Under cross examination, C claimed to have resolved from his physical injuries by up to 13 weeks. However, under cross examination C was reminded that he informed his experts at 13 months and 20 months that he had not recovered and was provided with a 24 month prognosis, which he adopted in his pleadings and witness statement. Contradictory social media evidence was also put to C. Under cross examination, it was established that C’s “Lord” title was purchased online and it was put to him that his PI claim is a pack of lies, just as much as his title is a fantasy, which C denied.
Having considered the evidence, C’s claim was found to be Fundamentally Dishonest, with enforceable costs against C, assessed on indemnity basis.
The above are examples of 3 FD findings over a few weeks, across the Jurisdiction. In each case, the C had presented large claims and C’s claim was found to be Fundamentally Dishonest, with no collision having occurred as claimed in one and in the second, disturbingly, a deliberate slam on, with innocent child private hire passengers in C’s car and an innocent D.
About the Author:
Roger André is Head of Deka Chambers Civil Fraud & Credit Hire Team. He and the team are ranked in Chambers & Partners 2024. Roger specialises in defending against motor and work place personal injury claims, often where Fundamental Dishonesty and costs issues arise. Roger is at the forefront of raising issues of rehabilitation fraud, claims layering and similar fact evidence. His work in this field has been widely reported and resulted in his being shortlisted for Barrister of the Year at the 2023 Legal Business Awards.