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Hanging on the telephone

Call recording assists defendant to defeat late personal injury claim

A Defendant successfully defeated a personal claim in which the Claimant had categorically stated in a telephone call that he had not been injured, only for him then to bring a claim for personal injury. The Claimant also attempted to claim for the costs of treatment. After the claim had been brought the insurers were able to obtain details of the call that the Claimant had made to his insurers, in which he was heard to say “I could tell you I had a bad neck, but I would be lying”.

Director, Andrew O’Connell looks at this fascinating case, that saw him act for the insurers. The case highlights the important part call recording evidence can play in defending late personal injury claims. The Claimant’s costs protection under QOCS was lost and he agreed to pay £5,500 towards the insurers costs.

Background

DWF LLP were instructed to defend a claim brought against insurers, arising from a road traffic accident which occurred on 5th July 2012. The Claimant alleged that the Defendant’s insured driver failed to maintain a safe stopping distance and went into the back of the Claimant’s vehicle. The Claimant was the only occupant of the vehicle and claimed damages as a result of an injury to his neck, together with medical treatment costs at £725. Both vehicles were insured by the same insurer. 

The call

On 6 July 2012 the day after the accident, the Claimant reported the accident to his insurer in a very lengthy phone call. During that phone call the Claimant confirmed several times that he was not injured, stating:- 

“I’m fine, yeah, I’m not injured at all. They were more shaken up than me”, “saw it as a pretty mild collision…just said well look just take each other’s details” “I just want it sorted to be honest with you, I can’t really be bothered.  I could tell you I had a bad neck but I would be lying” 

Additionally, during the course of the call, the Claimant confirmed he had not had any incidents, losses or thefts in the last five years. Subsequent investigations revealed that the Claimant had also been involved in a later road traffic accident on 13 September 2012. Perhaps the Claimant’s change of approach arose out of an idea that he might be able to attribute any injuries that he sustained in the later accident, to the index accident?

Subsequent events

The Claim Notification Form was dated 26 July 2013 (over a year after the index accident) so that the case was subject to QOCS regime and the Claimant could claim the costs protection under that regime. The Claimant also produced medical evidence in support of his claim for injury.

Denying that injury had been sustained in the accident, the Defence pleaded that the Defendant understood the Claimant had told his own insurer that he was not injured. The Defence also drew out the fact that the Claimant had failed to inform his medical expert of his accident on 13 September 2012 and the Defendant sought full disclosure of that accident, to include details of any successful claim that the Claimant might have made.

The main issues of concern are the Claimant’s credibility particularly around the fact that he had failed to reveal an accident in September 2012 to his medical expert who reduced his prognosis considerably when made aware of that other accident and he also vastly reduced the physiotherapy claim which had been put forward by the Claimant.

The Claimant refused to answer Part 18 Questions in which the Claimant was directly challenged about the call recording in the accident, and his poor memory of other accidents he had suffered. Part 35 questions were also served upon the medical expert, dealing with the Claimants accident history and the lack of objective clinical evidence of any injury. In response to those questions, the expert confirmed that they had reached their view, based upon the veracity of the Claimant’s account and that it was possible that the Claimant had not been injured at all.

In an attempt to induce the Defendant into settlement, the Claimant’s solicitors made a low offer, in light of the Part 35 responses from the Claimant’s medical expert, who offered a reduced prognosis period in his answers to the Part 35 questions.

The call recording from 6th July 2012 was disclosed to the Claimant’s solicitors two months before Trial, which was scheduled to take place on 21 January. The Claimant’s solicitors refused to include the call transcript in the Trial Bundle, stating that they would argue that it should be excluded from the evidence put before the Judge.

Court

On the morning of the Trial the Claimant intimated that he knew nothing about a call recording and it appeared that his solicitors had never raised the issue with him, although the Claimant’s costs schedule suggested that time had been claimed for doing so. The suggestion seemed to be that that the implications of the call recording and how it might impact on the Claimant’s case had not been brought to his attention ahead of the Trial.

An initial offer by the Claimant to “drop hands” was rejected and subsequently the Claimant came back with an offer of £5,500 for costs, an offer which was subsequently accepted to allow the Claimant to withdraw his claim. 

As the case fell within the qualified one way costs shifting regime an Order was specifically agreed before District Judge Bell confirming an exception to the QOCS regime and allowing the Defendant to enforce their costs.

Comment

The case highlights the importance of call recordings in late presented personal injury claims and how strong their evidential value is.

The call recording in this case is one of the clearest examples of a Claimant admitting they were not injured and it remains remarkable that the Claimant took this case all the way to trial, particularly given the fact that he readily admitted that those were the words he had said during the call.

Remarkably when faced with the transcript of the call, the Claimant’s solicitors flatly refused to acknowledge the content of call recordings and the Claimant would not respond to Part 18 questions.

Had the insurers met this claim, then they would have had to pay c£16,000 in respect of damages and costs.

The Defendant was represented by Emily Wilsdon at Temple Garden Chambers.

Contact

For further information please contact Andrew O’Connell directly on 0151 907 3198, or by email at andrew.o’connell@dwf.co.uk.

By Andrew McConnell

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.

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