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An unconvincing performance in a plotline full of holes

£850,000 claim dismissed for fundamental dishonesty

Pinkus v Direct Line
High Court (QB)
2 July 2018

DWF has successfully obtained a finding of fundamental dishonesty against a claimant who was found to have fabricated the vast majority of a personal injury claim for £850,000 following what was undoubtedly an alarming, but ultimately minor, road traffic accident. The case of Pinkus v Direct Line (2018) was handled by Claire Gribben, Head of Catastrophic Injury & Occupational Health in DWF's Bristol office assisted by Stephanie Hughes, Associate and Adrian Southwood, Senior Associate while Leading Counsel was William Audland QC of 12 Kings Bench Walk. The claimant was represented by Nigel Mills of NewLaw Solicitors and Marcus Grant, Counsel, of Temple Garden Chambers.

Summary

In a 78 page judgment, HHJ Coe QC was required to address a substantial number of issues to assess the claimant's claim and determine whether there was fundamental dishonesty at the heart of it.

She found that the claimant's fabrication and exaggeration touched every aspect of the claim: his pre-accident health, the severity of the accident circumstances, the diagnosis following the accident and its impact on his life. He was found to have lied about an attempt to contact a defence witness the day before trial and was even dishonest in relation to peripheral issues such as tax return declarations. His wife was also found to have fabricated and exaggerated her account of the claimant's symptoms.

The inconsistencies in the claimant's account throughout the litigation made it difficult for the medicolegal experts to assess the claimant's problems. The defendant's experts flagged the inconsistencies but indicated it was for the judge to determine issues of credibility whilst acknowledging that they were hard to explain from a clinical point of view. The claimant's experts however were reluctant to acknowledge the inconsistencies, and in some cases attempted to explain them away.

If there were not already enough substantive issues to be considered, the judge also had to contend with: a challenge to the pleading of fundamental dishonesty; an attempt to undermine the credibility of a defence witness; a question mark over the claimant's capacity to litigate; and the actions of one of the claimant's experts who contacted a colleague for an opinion on the case.

After unravelling the claimant's deceit and with significant criticism of the claimant's 'performance', the judge went on to make a finding of fundamental dishonesty and dismiss the claim under s.57 Criminal Justice and Courts Act 2015.

We highlight and examine some of the key issues in more detail below.

Background

David Pinkus brought a claim for personal injury, loss and damage arising out of a road traffic accident in August 2012. Liability for the accident was admitted, as it was not disputed that the defendant driver Pavel Khodak had pulled out into the fast lane of the M4 motorway in front of the claimant's vehicle, making contact. That, however, was the extent of agreement between the parties.

The claimant alleged that he suffered minor physical injury and Post-Traumatic Stress Disorder with Dissociative Symptoms causing devastating consequences on his life, and leaving him unable to work as a Second Assistant Director in the film industry. His pleaded claim was for £850,000.

The defendant's case was that the claimant suffered minor physical injury along with some short-lived psychological symptoms which had resolved by early 2013, and that the claim was worth no more than £3,000. The defence disputed both the way in which the accident occurred and that it was severe enough to cause PTSD. The defendant contended the claimant's claim was exaggerated/fabricated and that any ongoing genuine symptoms were probably caused by pre-existing family difficulties.

On the basis of those allegations, the defendant invited the judge to make a finding of fundamental dishonesty and dismiss the claim under s.57 of the Criminal Justice and Courts Act 2015.

Procedural issues

At the beginning of the trial, the claimant applied for a ruling that the defendant should not be able to run the case on the basis of conscious exaggeration, malingering and fundamental dishonesty. However, taking account of the Court of Appeal judgment in Howlett v Davies (2017), the judge gave a ruling to allow those arguments, as the claimant had in fact known the allegations he was facing for quite some time. Throughout the litigation, he had been subject to surveillance and intelligence enquiries, the medical evidence made reference to conscious exaggeration (including a lack of definitive diagnosis, failed effort tests and a dispute as to how the accident occurred), and the counter schedule made specific allegations of gross and conscious exaggeration.

The claimant responded to the allegations by serving witness statements in rebuttal of defence witnesses, including one from his own son, and by seeking to introduce evidence of previous convictions to cast doubt upon the credibility of one of the defence witnesses. Having heard the evidence and having had an opportunity to consider the reports, statements and documents served in the proceedings, the judge was satisfied that the defence case was fairly and properly put to the claimant.

Issues at trial

DWF's investigations into the claim uncovered a raft of inconsistencies affecting the credibility of the claimant's claim, all of which were aired at trial to paint an overall picture of dishonesty.

Accident circumstances

The nature and severity of the collision as described by the claimant were robustly disputed. Mr Khodak's evidence throughout the course of the claim was that when he moved into the fast lane, he was taking avoiding action after another vehicle had cut into his lane. In changing lanes, the rear offside of Mr Khodak's vehicle slightly nudged the front nearside of the claimant's vehicle. However, both vehicles remained in control and both drivers pulled over to the hard shoulder to exchange details.

The claimant's account of the accident was much more dramatic, and changed at various points throughout the litigation. He told experts, treating consultants and friends that his vehicle had been forced into the central barrier, that he struggled to regain control of his vehicle, and that he thought he was going to die. He served a schedule of loss, verified by a statement of truth, in which he said that his vehicle was subject to violent deceleration and rotational forces as a result of the impact and, after suffering a brief period of amnesia, his next memory was of his car on the hard shoulder of the M4 facing the wrong direction.

The defendant disclosed photographs showing no visible damage to Mr Khodak's vehicle, along with repair documents for the claimant's vehicle which indicated minimal damage to only the front nearside, costing less than £1,500 to repair.

Symptoms and impact on life

The claimant claimed to be suffering from PTSD with Dissociative Symptoms, which were worsening, and having a devastating effect on his life, leaving him unable to work as a Second Assistant Director in the film industry. He alleged he was fired from a job on the Jack Ryan film set as a result of the psychological effects of the accident, and that he had only managed to secure short-term decorating contracts thereafter. He also stated that family relations were significantly and detrimentally affected.

The defendant's case was that the claimant had suffered relatively minor physical and psychological injuries in the accident and that he was fabricating or exaggerating the extent of his injuries and ongoing symptoms. If there were found to be any continuing and genuine psychiatric symptoms, these were caused by depression due to serious marital and familial difficulties which pre-dated the accident.

Investigations

Evidence discovered on Facebook revealed that the claimant had commented on the accident on the day it happened, and later joked with friends about it in conversation. He was seen, in the following years, to be leading a full life: he was able to travel extensively as well as read, consider and engage in debates regarding social and political issues, films, the film industry and television documentaries – all of which were wholly inconsistent with the claimant's allegations that he could not read a book or follow a storyline of a television programme or undertake his pre-accident work. He described going on a 700 mile road trip across America in 2013 and said the highways were like NASCAR.

Surveillance evidence indicated that the claimant had been undertaking some decorating work, and that he was capable of driving and usual everyday activities.

A part of the claimant's evidence was that he had suffered extensive difficulties during the decorating work he had undertaken after the accident. With that in mind the defendant also contacted the two men with whom he worked, one of them being an old and close friend of the claimant's. The witness evidence revealed that none of the difficulties alleged by the claimant were true and that he had complained, not of any accident-related issue, but of significant family problems which the claimant downplayed throughout the course of the litigation.

Findings

In a judgment which was extremely critical of the claimant's 'performance', Her Honour Judge Coe QC sitting as a judge of the High Court made the following findings:

Claimant's evidence
  • Mr Khodak's evidence regarding the nature of the collision was to be preferred. He was straightforward and patently honest. The manoeuvre, as described by the claimant, would not have resulted in such minimal damage. The claimant had been inconsistent in his account of the accident and had consistently exaggerated it. He had actively sought to give the impression of a collision with the central barrier. His oral evidence that the whole of the M4 had come to a standstill behind him was a later invention and reflective of his exaggeration. 

  • In exaggerating the severity of the impact, the claimant had gone on to report post-accident driving difficulties to the treating clinicians and experts. However, he admitted at trial that he had consistently driven to and from work, past the site of the collision, following the accident, rather than relying upon his wife for transport and avoiding the scene, as he had suggested during the course of litigation. 

  • The claimant's "performance in the witness box was unconvincing and deliberately staged". His "memory failed him when he was being asked challenging questions about his credibility, yet clear when he wished to make a point about the extent of his difficulties". It was also completely at odds with the previous five years' posts on Facebook, or the debates he entered into with the defence witnesses on the issues of Brexit.

  • "His "performance" was so extreme" – he appeared unable to recall the value of his pleaded claim - that the judge felt the need to explore whether or not he had capacity to litigate, despite there being no assertion to the contrary by any of the experts or the claimant's solicitor during the course of the litigation, before deciding that in fact, he did have capacity. His performance, if genuine, would have meant an inability to function in everyday life. 

  • At the time of the accident, the claimant was subject to significant stressors at home and at work. There were difficulties with his son's behaviour, in excess of typical teenage behaviour, which caused serious arguments with his wife and which were documented in the claimant's post-accident counselling records and in the defendant's witness evidence.

  • The claimant and his wife had both been "deliberately obstructive in failing to identify the counsellor they saw" prior to the accident. However, under cross-examination, the claimant's wife provided further details which, had they been provided during the course of the litigation, would have led to the identification of the counsellor and thus provision of the notes. This obstructive behaviour caused the judge "to be even more firmly of the view that this counsellor’s notes would have indicated that the problems with their son were significant." 

  • The claimant's wife was not a straightforward or truthful witness, and it would be incredulous to believe, as she suggested, that she was unaware of her husband's symptoms or that they were attributable to the accident, if he had been genuine. 

  • There were occasions when the claimant "deliberately and consciously lied" to the court when giving his evidence, for example, the claimant had called one of the defence witnesses, a former friend, three times on WhatsApp the night before the trial commenced. His tale as to how this occurred was implausible. The judge found that he tried to contact the defence witness as he had concerns regarding the effect his evidence would have upon his case. 

  • Further evidence of the claimant's tendency towards dishonesty was his failure to declare any of his income from 2016, as a result of his decorating work, to HMRC until the Saturday before the trial commenced, having been forced to do so because of this litigation. 

Expert evidence
  • The claimant's expert neuropsychologist, Dr Katherine Pierce, was criticised for failing to disclose details of her discussions with one of her peers during the course of her preparation of the joint report with Dr Kemp, the defendant's expert. Her evidence lacked objectivity and thorough analysis. She did not act in accordance with her responsibilities and duties as an expert, being overly willing to find an explanation or way of approaching the claimant's inconsistencies and not allowing for any possibility that might undermine the claimant's credibility or her opinion. 

  • The evidence of Dr Kemp, expert neuropsychologist, was to be preferred. He gave his evidence in a fair, thoughtful and balanced manner. He felt that the claimant's clinical presentation was "too odd with too many inconsistencies" to make a psychological diagnosis.

  • Neither Dr Howard the claimant's expert psychiatrist, nor Dr Neal for the defendant, were able to explain the claimant's alleged severity of memory disturbance on entirely psychological rationale. Dr Neal's evidence was to be preferred over Dr Howard who, like Dr Pierce, was also unwilling to acknowledge the inconsistencies in the claimant's evidence to their full extent. 

  • As a result of the claimant's extensive fabrications and exaggerations, the experts' opinions on any ongoing psychological or psychiatric illness or disability were fundamentally undermined and the judge was not able to reach a conclusion that the claimant had suffered, or was suffering, any ongoing disorder, whether attributable to the accident or not. 

Findings on fundamental dishonesty

The judge considered the recent authorities on fundamental dishonesty in LOCOG, Razumas, Molodi, Richards and Wright, as well as the test for dishonesty in Ivey and went on to make the following findings:

  • As a starting point, the judge observed that if the claimant had deliberately fabricated the vast majority of the claim, then he had risked an enormous amount financially and potentially personally. 

  • Nevertheless, he had deliberately exaggerated his reported symptoms and fabricated many symptoms, in particular severe memory loss, with the intention being to "substantially affect" and inflate the claim. 

  • The fabrication of the reported symptoms was so extreme that even the claimant's doctors had been unable to provide a reliable diagnosis. The 'performance' in the witness box was so extreme as to raise issues over his capacity to litigate. He had also been dishonest about his pre-accident circumstances and his post-accident functioning.

As a result, the claimant's dishonesty was "close to the heart" of his claim and the claim was therefore dismissed in its entirety. The judge determined that the claimant would not suffer any injustice beyond the loss of the genuine part of the claim which she valued at £4,500.

And in a final comment, referring to the 2017 DWF case of Aviva v Kovacic the judge indicated that she was satisfied to the criminal standard of proof in respect of her findings of deliberate exaggeration and dishonesty. 

The claimant will now have to repay £13,000 that the defendant issued to him by way of interim payments, and pay the defendant's costs on an indemnity basis given the claimant failed to exceed the defendant's Part 36 offers. If the claimant also becomes liable to pay his own legal representatives' costs, as well as those of the defendant, the claimant could see personal losses approaching £1million.

Comment

This case represents an example of how fundamental dishonesty can be invoked so as to significantly assist the position of insurers in the handling of even higher value quantum claims. 

As to the defence of this type of claim, it is important to ensure that the correct medical experts are instructed as well as undertaking a thorough review of all records which can possibly be obtained in order to identify the inconsistencies in the evidence.

While surveillance was helpful here, it was not as important as intelligence enquiries including examination of the claimant's full Facebook account. The claimant's profile had initially been public but when he became aware of the defendant's investigations he closed his profile and the defendant then sought and obtained by consent disclosure of the full Facebook account. 

Key here was the obtaining of witness statements from those with whom the claimant undertook his later decorating work – something which he alerted the defendant to when he served a witness statement providing further details. Despite the perception that these individuals were friends with the claimant, in fact they were honest regarding his performance and presentation, much to the detriment of the claimant's fraudulent approach.

It should not be assumed that, simply because a claimant provides names and evidence regarding friends or colleagues, that those witnesses will support the claimant. It is always worthwhile making direct enquiries, particularly in cases such as this where dishonesty, malingering and conscious exaggeration has been suspected from the outset.

This case is another example where insurers will leave no stone unturned in their work to identify and derail fraudulent claimants.

Contact

For further information, please contact Claire Gribben on 0117 244 4980 or at claire.gribben@dwf.law

Read all of our fundamental dishonesty legal updates

By Claire Gribben

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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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