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Hepburn v Jabreen and Royal and Sun Alliance Insurance Plc.
District Judge Williams - Birmingham County Court 16th June 2016

A Claimant who saw her claim for personal injury and other losses struck out, also lost the protection afforded to her under QOCS on the basis that her conduct had obstructed the just disposal of proceedings and had abused the Court’s process. In an attempt to bolster her claim, the Claimant had disclosed what she claimed was a record of a text exchange between her and the First Defendant shortly after the accident was said to have taken place. Despite being ordered to do so, the Claimant then failed to provide her mobile phone records, for the month before and the month after the accident.

DWF Senior Solicitor, Colin Vickers, who acted for RSA in the defence of the claim, looks at the strategic approach taken in defending the claim, and some of the inconsistencies in the Claimant’s evidence, which went beyond concerns over the bona fides of the text message evidence.

Background

The claim arose out of an alleged road traffic accident which occurred on 27th July 2014 in Castle Bromwich, West Midlands. The Claimant claimed to have been the driver of a Ford Fiesta which had been involved in a rear end collision with an Audi A3 being driven by the First Defendant, Nadia Jabreen. The Claimant pursued a claim for soft tissue injuries and also claimed to suffer from a fear of travel. The Claimant’s medical expert stated the opinion that all symptoms should resolve by 15 months post accident.

Royal and Sun Alliance Insurance PLC (RSA) insured the First Defendant’s vehicle and were added to the proceedings at their request in light of indemnity issues as well as concerns with the veracity of the presented claim.

Three further passenger claims waited in the background, all Claimants having served medical evidence to support their own injury claims. 

The defence

A defence was filed on behalf of RSA, denying that the incident was genuine and alleging that the Claimant could not prove her claim on the basis that there were a number of unsatisfactory aspects to the alleged incident and the claim generally.  The crux of the defence centred around the following four strands:

  1. Text messages: the Claimant presented two screen shots of her mobile phone which she said showed an exchange of text messages between her and the First Defendant that was purported to have taken place, shortly after the incident, discussing how the First Defendant was going to pay for the repairs. The exchange started at 11.55 am on the day of the incident (27th July 2014), ending at 3.44 pm. Scrutiny of the exchange led us to be concerned about two aspects of the exchange:

    1. Timings: the Claimant told her medical expert that the incident occurred in the afternoon, yet the exchange started in the morning.

    2. Familiarity: the Claimant deployed abbreviations, such as “bbz” in the exchange, (an abbreviation for ‘babes’), which suggested a level of familiarity between the Claimant and the First Defendant.

  2. Inconsistent evidence: the First Defendant had told her insurer that there was just one passenger in the Claimant’s vehicle, who was male, yet insurers had already received claims from three passengers, who were all female. The Claimant told her expert that the incident occurred at low speed, but that the airbags deployed. The Claimant did not however pursue any claim for vehicle damage. The First Defendant had told her insurers that there was no damage to either vehicle.

  3. Database searches: searches carried out by DWF revealed that both the Claimant’s vehicle and First Defendant’s vehicle had been searched on by ‘motor traders’ within a 24 hour period of each other around one month prior to the incident (28th and 29th June 2014).

  4. Previous claims: the medical expert’s report did not refer to the Claimant having been involved in any previous accidents. Database searches conducted by DWF showed that the Claimant had been involved in five previous road traffic accidents, pursuing injury claims from all but one.

What happened next

The Claimant failed to respond to the concerns raised in the defence and was invited to voluntarily disclose her mobile phone records, in order for us to establish whether there had been any other exchange of messages between her and the First Defendant, both before and after the incident.

The Claimant declined to do so and a specific disclosure application was made, requesting an order that the Claimant disclose her mobile phone records for one month prior to the incident and one month after the incident. The application was heard at Birmingham County Court on 18th May 2016.  

At the hearing, the District Judge found that the mobile phone records were relevant to the issues and that they should be available in time for the trial and therefore made an order that the Claimant was to disclose the records by 3rd June 2016. The Claimant did not disclose the records as ordered.

The case proceeded to trial on 16th June 2016 before District Judge Williams in Birmingham County Court. The Claimant did not attend and following her failure to attend and failure to disclose her mobile phone records, her claim was struck out.

Consequently we made an application before the trial judge that QOCS should be dis-applied on the basis that the Claimant’s conduct obstructed the just disposal of the proceedings and amounted to an abuse of process, under CPR r.44.15. The Judge agreed and the Claimant was ordered to pay RSA’s costs in the sum of £9,552.40 within 14 days. 

Comment

We suspected that the Claimant and First Defendant knew each other prior to the incident and had in all likelihood staged/contrived the collision.

The Claimant attempted to put the Second Defendant off the scent by presenting the text exchange between her and the First Defendant, as evidence that the claim was genuine, but the Claimant’s efforts only served to confirm our suspicions that the claim was not genuine.

It can sometimes be difficult to convince a court that disclosure of mobile phone records are relevant in cases such as these and allay fears that a request for disclosure of such records is nothing other than a fishing expedition. In this case however, the unambiguous pleading in the defence that the Claimant and First Defendant knew each other prior to the incident (despite them both denying it), helped to demonstrate why an order for disclosure was warranted.

It was not necessary in this case for the Second Defendant to prove that the claim was fundamentally dishonest, in order to obtain an exemption from QOCS. The Claimant’s failure to provide disclosure of her phone records as ordered, coupled with her failure to attend court, obstructed the just disposal of proceedings and amounted to an abuse of the Court’s process for the purposes of CPR r.44.15.

The successful strike out of the Claimant’s claim has lead to the three other claims being dropped. The Claimant seems to have been a ‘guinea pig’ to test what RSA’s response would be. None of the other Claimants had served a statement in support of the Claimant who had litigated.  There is no reason why the passenger claims could not have been issued at the same time. 

Contact

For more information about this case, please contact Colin Vickers, Senior Solicitor, on 0151 907 3323 or at colin.vickers@dwf.law

Date: 23/09/16 DWF receives Data Analytics Excellence award for tech-driven counter fraud innovation

DWF has been awarded the ‘Data Analytics Excellence’ accolade at this year’s Insurance Times Tech & Innovation Awards, which recognise the insurers, brokers and law firms whose innovative solutions are transforming the insurance landscape.

By Colin Vickers

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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