Mr John Coburn v Tesco Underwriting Ltd
Liverpool County Court
Robert O’Connor, Paralegal in DWF’s insurance fraud team, was instructed by Tesco Underwriting to defend a road traffic accident claim owing to concerns that the collision was a ‘low velocity impact’ which should not have caused the claimant to sustain an injury. The District Judge made a finding that the claim was ‘fundamentally dishonest’ and accordingly reversed the presumption of Qualified One-Way Costs Shifting (‘QOCS’).
In a judgment handed down on 21 January 2015, following a trial at Liverpool County Court on 31 October 2014, District Judge Henthorn dismissed a claim for damages arising out of a road traffic accident on 15 May 2013.
The Qualified One-Way Costs Shifting regime was introduced in personal injury cases on 1st April 2013, but ahead of its introduction many people expressed concern that offering claimants the protection of QOCS would lead to a “have a go” claims culture. The rules as implemented provide that protection under QOCS is lost if the claim is struck out, or if the “claim is found on the balance of probabilities to be fundamentally dishonest
A definition of fundamental dishonesty is not provided within the Civil Procedure Rules and the loss of QOCS protection in these circumstances is a developing area of law. It was unclear until now whether fundamental dishonesty could be applied to ‘low velocity impact’ cases where fraud was not alleged in the defence, but where the defendant disputes that the collision possessed the necessary force for the claimant to sustain the injuries as alleged.
Background and Investigation
The case related to a road traffic collision in Liverpool on 15 May 2013, between the claimant and Tesco’s policyholder, as the policyholder attempted to join a main road. Whilst it was admitted that the policyholder was at fault for the collision, it was not accepted that the claimant could have suffered the injuries of which he complained. It was said that the collision was a minor, glancing impact at low speed and that neither vehicle exhibited any clear evidence of damage post collision.
The claimant contacted solicitors to present a claim for injury almost immediately after the incident but before he had sought any medical attention. When he was examined by his own medical expert, the claimant provided an exaggerated account of the severity of the collision which was inconsistent with the trivial impact described by Tesco’s policyholder.
Background checks on the claimant found that he was a ‘serial claimant’ who had presented personal injury claims arising from several other alleged road traffic collisions. One of these claims had been repudiated by the relevant insurer owing to their concerns that the collision was too minor to cause injury. Another a separate claim had been investigated by DWF as that insurer had similar concerns. That latter case had proceeded to a trial earlier in 2014, leading to the claimant’s claim being dismissed by Recorder Benson QC who found the claimant to be an ‘unreliable historian’.
DWF obtained evidence in respect of all of the claimant’s previous claims, and it was noted that he had provided an inconsistent and misleading account of his accident history to various medical experts.
Giving judgment, District Judge Henthorn dismissed the claim in its entirety and entered judgment for Tesco. Finding that the claimant was “an unsatisfactory witness” the District Judge rejected the claimant’s version of events, going on to conclude that he had “..systematically sought to mislead” the various medical experts and had “lied deliberately”. It was said that the claimant was “a very experienced claimant who knows exactly what to do when seeking to substantiate a claim for damages”.
Going further, the District Judge also considered whether the claimant had been fundamentally dishonest, such that there should be an exception to the qualified one-way costs shifting provisions which would allow the defendant to enforce an Order for their costs.
The District Judge considered that whilst it would be a robust decision to find that the claimant had been fundamentally dishonest based upon the accident circumstances alone, he must also consider that the claimant failed “to give anything like an honest history of previous accidents”. When looking at “the totality of his evidence”, the District Judge found that the claimant had been fundamentally dishonest and ordered that the claimant pay the defendant’s costs of the action under CPR r.47.17.
For further information please contact Jamie Taylor, Counter Fraud Director on 0161 604 1606.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.