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Driver who supported phantom passengers loses his claim under Section 57

Ismaili, Arifaj & Berisha -v- Verizon UK Ltd
Before DJ Letham
Edmonton County Court - 2 August 2016

A claimant who was awarded his claim for vehicle damage following a road accident, subsequently had his claim dismissed in accordance with Section 57 of the Criminal Justice and Courts Act 2015. The Court found that he had been fundamentally dishonest in supporting the claims of two claimants who had alleged that they had been passengers in his vehicle. The Court found that those claimants were not in fact in his vehicle at the time of the accident.

DWF Associate, Daniel Holbrook, who dealt with the case on behalf of RSA, reviews the background to the case and how the Court came to conclude that the Claimant should forfeit his claim.

Background

The claim arose out of a road traffic accident which occurred on 15 April 2013 when a Toyota Prius (driven by the Defendant’s employee) was involved in a collision with a VW Golf driven by the First Claimant, Feim Ismaili, and supposedly occupied by the Second and Third Claimants, Dritan Arifaj and Qamil Berisha.

The Defendant’s employee admitted full liability for the collision but stated that there were no passengers in the Claimant’s vehicle and that the incident occurred in a slow moving queue of traffic, resulting in an impact which was only very light touch. Having had sight of photographic identification from the First Claimant, the Defendant’s employee also raised doubts as to whether the First Claimant was in fact the driver at the time of the collision.

All three Claimants pursued claims for personal injury with the First Claimant also pursuing claims for the pre-accident value of his vehicle and physiotherapy charges. The Second Claimant also pursued a claim for physiotherapy charges.

Upon the three Claimants issuing proceedings, a robust defence was filed which admitted liability but disputed both occupancy of the Claimant’s vehicle and causation of the alleged injuries. It was specifically pleaded that should the Court find that one or both of the alleged passengers were not in the vehicle, then it would be argued that the First Claimant was a party to an attempt to defraud the Defendant and their insurers. The defence went on to plead that if the First Defendant was found by the Court to be supporting the claims from the Second and Third Claimant and the Court concluded that they were not in fact in the vehicle at the time of the collision, the First Claimant should forfeit his claim and/or be penalised in terms of costs with an order that he pay the Defendant’s costs in full.

The witness statements of the three Claimants were largely consistent with each other: all three Claimants stated that the First Claimant was the driver of the vehicle at the time of the accident and that the Second and Third Claimants were travelling in the vehicle as passengers. The Claimants all stated that the Defendant’s employee did not come over to their vehicle after the collision, to either inspect the damage or look inside the vehicle and that he remained in his vehicle throughout their conversation with him.

 

The case proceeded to Trial before DJ Letham in Edmonton County Court on 2 August 2016. The Defendant was represented by Anna Hughes of 2 Temple Gardens, London.

Balancing the evidence

The Judge stated that the Defendant’s employee was an “extremely impressive” witness who gave his evidence “thoughtfully” and “well”. It was noted that he had always admitted that the accident was his fault and had done the honest and decent thing in that regard. It was recorded that he had made appropriate concessions during his evidence and it was found that he was an honest and decent witness who had come to Court to do his best to assist.

The Judge stated that the First Claimant was not a particularly good witness and that his evidence was “completely contradictory”. During the course of giving his evidence, the First Claimant conceded that he had been less than frank about detailing the previous accidents that he had been involved in and that he had failed to accurately state his occupation. The Judge was unimpressed that, rather than accepting any oversight on his part, the First Claimant had sought to lay the blame at the door of his solicitors and the medical expert.

That said, the Judge found that the evidence did establish that the First Claimant was the driver of the VW Golf as he alleged.

The Judge then went on to consider whether the Second and Third Claimants were in the VW Golf at the time of the accident. The Judge stated that the Second Claimant gave evidence well and made timely concessions. Whilst it was put to him that he had colluded with the other Claimants as the witness statements were all in identical terms, the Judge did not consider that this was evidence of collaboration, with the more likely explanation being that the Claimants’ solicitor had simply copy and pasted the same witness statement and that he had “little faith” in relation to the circumstances in which they were produced. The Judge did however accept that there were worrying aspects of the Second Claimant’s evidence and that he was poor when giving evidence in relation to his injuries.

The Judge considered the Third Claimant to be the least convincing of all of the witnesses he heard from. He had denied that he had seen his own medical expert and/or his own medical report, and claimed that the expert should be investigated.  It was plain that he had got the site of his injury wrong as his oral evidence contradicted all of the documents as to whether he had sustained a neck injury or an injury to his upper back. The Judge found the Third Claimant’s explanation that there was no real distinction between the two to be “wholly implausible”. Further, it was noted that the Third Claimant’s evidence was poor as to the damage that was done to the First Claimant’s vehicle,

Accepting that the Defendant’s employee’s was wrong about the First Claimant not being the driver but that he had confirmed that he was “100% certain” that there was no one else in the VW Golf aside from the driver, the Judge found that the Defendant’s employee had gone to the First Claimant’s vehicle to inspect it and that the Claimants were wrong when they said he had not. The Judge preferred the evidence of the Defendant’s employee and dismissed the claims of the Second and Third Claimants on the basis that they were not in the vehicle.

The Judge then considered whether the First Claimant had sustained any loss and awarded a reduced amount in respect of his claim for his damaged vehicle, allowing him the sum of £200, rather than the £800 which had been claimed, on the basis that the First Claimant had sold the vehicle after the accident for £600.

Turning to the personal injury aspect of the claim, the Judge stated that he was quite satisfied that this was a low speed accident. He considered the Defendant’s employee’s description that the accident was a “mere bump” to be accurate.

The Judge stated that the impact occurred at well under 10 mph and that, on the balance of probabilities, he could not accept that the First Claimant had suffered any injury; he had been inconsistent in respect of his evidence in relation to the same and therefore found that the First Claimant had not discharged the burden in relation to the personal injury claim. The claim for physiotherapy fell with the injury claim and so was also dismissed.

Defendant’s Counsel then made an application under Section 57 of the CJCA to have the First Claimant’s claim dismissed on the grounds of fundamental dishonesty in relation to the Second and Third Claimant’s claims and in relation to his own claim.

The Judge stated that he was satisfied that the First Claimant had been fundamentally dishonest in relation to the claims of the Second and Third Claimants. He had given evidence in support of their claims by stating that they were both in his vehicle when the accident had taken place. There being agreement between Counsel that Section 57 included the dismissal of claims for special damages and was not confined simply to the personal injury aspect of the Claim, the Judge dismissed the First Claimant’s claim as a whole.

On the basis that there had been fundamental dishonesty, the court then went on to suspend the protection afforded to Claimants under the Qualified One Way Costs Shifting regime. The Defendant’s costs were summarily assessed at £6,740.86 inclusive of VAT, with the Defendant’s to give credit for the first £200, that amount being the sum the First Claimant would have recovered, were it not for the finding of fundamental dishonesty under Section 57.

Comments

One of the reasons that Section 57 was introduced was to address cases exactly like this one, where a claimant supports claims made by phantom passengers and the Judge was happy to apply Section 57, even though the Defendant had not pleaded reliance of it in their defence, neither had fraud been pleaded.

Whilst there are now a number of Court decisions as to how fundamental dishonesty applies in the context of QOCS, there is still a lack of reported case law as to what might constitute fundamental dishonesty in the context of Section 57 and the Court’s decision in this case further demonstrates the circumstances in which fundamental dishonesty may be applied by the Courts in the context of Section 57.

Had the First Claimant brought his claim before 13 April 2015, i.e. before the introduction of Section 57, then it is likely that he would have recovered the £200 he was awarded by the Judge and perhaps some element of his costs for pursuing his claim, as was the case in Shah v Ul-Haq (2009).

Even though there were three witnesses essentially giving the same account and despite the Judge discounting the Defendant’s evidence that the First Claimant was not the driver, the Judge was prepared to accept the Defendant’s evidence that the Second and Third Claimants were not in the vehicle.

Section 57 applies in liability dispute case due to fundamental dishonesty

Read about our earlier case success in our update

 

 

Contact

For further information please contact Daniel Holbrook, Associate on 0151 907 3131 or at Daniel.Holbrook@dwf.law

By Daniel Holbrook

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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