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Fundamental dishonesty, conspiracy and multiple passenger claims

Matthew Boon and 18 others v (1) Dale Pritchard (2) Nigel Mordescai (Liverpool CC, HHJ Gregory, 14 February 2018)

On 11 July 2015 a minor road traffic accident occurred on a roundabout between a van driven by the first defendant and a coach driven by the second defendant. The second defendant’s coach that day carried 25 passengers on a stag do. After the drivers had stopped and exchanged details the stag party continued on to a day at the Chester Races and then afterwards to a nightclub in Wigan. Within a few weeks of the accident 20 of the 25 passengers claimed they had suffered soft tissue whiplash type injuries and claimed damages for personal injury. Of the 20 claims, 19 were presented through the same set of solicitors.

The insurers of both Defendants faced a difficult decision whether to settle or fight the personal injury claims. Certainly the accident circumstances were suspicious. The description of the accident by both drivers and an expert engineering report suggested the collision was no more than a light glancing blow. Indeed the drivers themselves barely noticed the impact and suffered no injury. However each Claimant relied on the corroborative accounts of his peers as well as supporting evidence from a medico-legal expert, GP notes, physiotherapy invoices and statements from family members confirming whiplash symptoms. Further, even if the insurers fought the 20 claims and succeeded they would likely be unable to recover their legal costs of the successful defence owing to the qualified one-way costs shifting provisions found under CPR 44.14. Only a finding that the claims were fundamentally dishonest pursuant to CPR 44.16(1) would allow the insurers to recover their legal costs of defending the claims and make the defence commercially viable.

The Defendants called the Claimants’ bluff. At a 6-day trial in Liverpool County Court all Claimants were subjected to cross-examination alleging that the collision was so minor it could not have caused personal injury. In addition the Defendants’ case was that the claims were brought as part of a conspiracy concocted on the stag do in a deliberate attempt to defraud the Defendants’ insurers. The potential finding of fraud against the Claimants and possible subsequent criminal prosecution meant there was much at stake for all concerned. This, to borrow a gambling analogy, was high stakes poker.

HHJ Gregory found the evidence of the Claimants ranged from ‘evasive’ and ‘unsatisfactory’ to ‘deeply unimpressive’ and ‘hopelessly unconvincing.’ However the Defendants’ attempts to elicit evidence of a conspiracy proved largely unsuccessful. The Claimants were steadfast that the decision to claim for personal injury was their own and that they had not been influenced by a ringleader. There was consequently no ‘smoking gun’ conclusively proving dishonesty such as the surveillance evidence in the case of Gosling v Hailo (Cambridge CC, HHJ Maloney QC, 29 April 2014) or fabricated invoices as in the case London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 (QB). Nor was this is a case where the Defendant alleged the entire accident had been fabricated as in Howlett v Davies [2017] EWCA Civ 1696. In these circumstances, could the Court find that all of the claims were brought as part of a conspiracy and therefore fundamentally dishonest?

HHJ Gregory summarised the problem facing the Court in paragraph 13 of his Judgment as follows:

“To sound a note of caution: I remind myself that although the Claimants form part of a coherent group with some form of shared experience of the day in question, and certain features in common with regard to the nature and presentation of their respective claims, I must, of course, avoid the temptation of a holistic approach, and be astute to evaluate and weigh the evidence relevant to each Claimant separately.”

Despite the above warning and the lack of definitive evidence of a ringleader HHJ Gregory went on the find each and every claim was fundamentally dishonest.  At paragraph 100 of his Judgment he ruled:

“I am satisfied, by the balance of probabilities, on the totality of the evidence, that none of the passengers in the coach sustained the alleged or any personal injury as a consequence of the accident involving the two vehicles. In my judgment the claimants cynically exploited the opportunity afforded by the coming together of the two vehicles on the roundabout. So, whilst it is impossible on the evidence to say precisely at whose instigation these claims were conceived I am satisfied that, in the end, all the Claimants from whom I heard oral evidence were complicit in presenting and pursuing claims which, to borrow from the judgment of his HHJ Iain Hughes QC in Menary v Darnton (unreported, Winchester County Court, 13 December 2016) were dishonest in inception and pursued at trial in the hope of taking money from the Defendants’ insurers to which none of the Claimants were entitled.”

The case is to my knowledge the first of its kind involving a finding of fundamental dishonesty against so many passengers. The Judgment will undoubtedly be of some comfort to insurers faced with similar large-scale passenger claims. It may also deter potential claimants from gambling on a fraudulent claim. With hindsight the Claimants in this particular case may wish they had stuck to having a flutter on the horses instead.

Vaughan Jacob appeared for the successful second defendant and was instructed by Edward Weaver of Ellisons Solicitors. A copy of the Judgment can be viewed here.

Vaughan's profile can be viewed here

Vaughan Jacob / 21st May 2018


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