If you want to become a Tiger, you must forget about playing the best moves and concentrate on winning.
Simon Web-Chess for Tigers
One development in the last 25 years of litigation which has been problematic for those who bring and defend credit hire claims, has been the growth of insurance fraud and the way it has penetrated credit hire litigation in turn. “Crash for cash”, is not just a cheap phrase, but a way of life for a small number of claimants.
Increasingly over the years, I have noticed how what were once relatively straightforward claims where the key issues were need, rate, impecuniousity and duration of hire have evolved into claims where fraud and latterly fundamental dishonesty have been alleged and often found at trial.
Gone are the days, when the Circuit judge would lean forward and gently rebuke counsel during a sustained cross examination and remind him that most people do not come to court to tell lies.
Even in cases where there has been a genuine accident, but no injury sustained, it can be tempting for a claimant to assert that they have been injured, with for example, mild whiplash injuries and seek to collect a couple of thousand pounds, for the trouble and inconvenience the accident will undoubtedly cause them. Not only is such conduct, dishonest, anti-social and objectionable, it often ends in disaster for the claimant, as we shall see.
So what are the key points to remember when seeking to establish whether a claimant who may well have been involved in a genuine accident did not suffer an injury at all?
Similarly, what are the points to guard against, when acting for a claimant who may be unsophisticated and unwary, and whose confusion may be painted as dishonesty?
The starting point is to use empathy when considering the claimant. It is important to understand that when approaching a claimant who is dishonest, the witness will have a script worked out in their head, prepared answers and the key point for a defendant is to disrupt that narrative, both in preparation prior to trial and in cross examination.
Conversely, a solicitor acting for a claimant must understand, that most clients are “all at sea” when it comes to the claims process. Moreover they are likely to be careless and neither check their paperwork assiduously, nor perhaps read it at all.
It follows that their evidence, must be tested with tough questions and a claimant’s solicitors must use the telephone to go through documentation such as a witness statement, paragraph by paragraph, to ensure it represents accurately what the claimant’s account of the facts is.
The mechanics of injury and the onset of pain
Dishonest claimants are often caught out, because they do not understand the mechanism of injury. An injury is sustained when the accident takes place: muscles and ligaments in the neck are displaced beyond their elasticity and a strain is suffered.
The fact of injury can be masked for a while, by shock, or distraction. Often a claimant will not notice it before they go to bed, but will wake up in pain the next morning.
If however, a claimant is complaining of the onset of injury days later, that is a forensic point for the defendant and a warning bell for those representing claimants.
The severity of the accident and displacement of the occupant of the car
The starting point for any judge, is whether the circumstances of the accident are likely or unlikely to cause personal injury. In this respect all drivers, will have experienced harsh or sudden braking, or an emergency stop, when they are displaced within their vehicle.
But injury would be very rare in such circumstances, because of the natural elasticity of muscles and ligaments, which require a certain degree of force, to be stretched beyond their elasticity. Low speed impacts, are unlikely to cause injuries and a judge will listen very carefully to the claimant’s evidence in that case. But it may well be disputed that an impact is “low speed”.
Engineering evidence is key. In addition to the estimates, invoices, and engineer’s reports any engineer will take photographs. These should be obtained as JPEG images and may be revealing. Both the quantum of repair costs and the nature and extent of the impact, revealed in the photographs, can be probative as to the nature of the collision and the force of any impact.
Often however, engineering evidence may be incomplete: if a vehicle has been involved in earlier accidents, or even written off, the question of pre-existing damage may need to be considered and explored further. Equally if a claimant can show that the earlier damage, was in fact repaired, this point may disappear. Yet all too often, photographs of damage are small, badly copied and sometimes placed in black and white in the trial bundle.
The oral account of the claimant
Following on from the above, when cross-examining a dishonest claimant at trial, before a single document is looked at in cross examination, the witness should be compelled to set out their key evidence orally: what injuries they sustained, when the pain came on, whether they took time off work and similar “touch points”.
The dishonest claimant will not be able to hold all these details in his head. Conversely, for the unsophisticated claimant, a witness statement should be prepared which is not in “standard form”, but is written in the witness’s own words, and tested against the facts derived from disclosure documents, and considered against the medical report. The easiest thing to do, in any situation after all, is to tell the truth.
The contents of the Claims Notification Form
A Claims Notification Form may be compiled in a number of ways. But the current incarnation of the form, contains a statement of truth. It follows that the form should be provided to the claimant and it checked, over the telephone, section by section that it is true, before the claimant signs it.
And it should always be the claimant who signs it. Just as they should sign any other document requiring a statement of truth. Professional embarrassment can arise, when a claimant confronted with false statements and shortcomings in the CNF and contradictions with other statements, in cross examination, blames his solicitor as they usually tend to do.
The contents of the medical report
Do claimants read their medical reports? I have no doubt they are sent to the claimants for approval, but I think some claimants don’t read them, and if they do read them, they don’t understand them. And that is why it is important to ensure that the draft report is accurate.
Time after time, a claimant will under pressure in the witness box have to accept that he has given four differing accounts of his symptoms: orally at trial, the description contained in the CNF, the account taken by a medical expert and the version contained in his witness statement. Yet each of those three documents, can be checked and clarified before being served.
The contents of the GP and other medical records
GP records can be useful and interesting. They can be supportive of a claimant’s account: they can be contradictory to a claimant’s account. If a claimant does not agree what is in those records, this should be identified months before trial, and matters addressed. If a defendant sees that a claimant went to his solicitor, and only afterwards, went to his GP, that can produce an interesting line of questioning.
Collateral dishonesty: earnings, expenditure and tax
Sadly, not all people are upright citizens who pay every pound of tax, that they should, or indeed any tax. If a witness is not telling HMRC the truth about their financial position, then they may be thought to be unlikely to be telling the truth about their injury. Though of course, matters may be more nuanced than that.
It follows that a claimant’s financial documentation, can cast light upon the validity of their claim to impecuniousity, but also reflect on their general credibility. In a low speed impact, and with differing accounts of symptomology, that is usually enough to cause a claim to fail.
The lens of authority
When acting for a defendant, a barrister will usually be mindful of the judgment of Martin Spencer J in the case of: Molodi v Cambridge Vibration Maintenance Service  EWHC 1288 (QB)
44. Before considering the particular issues in this case, it is also pertinent to recognise the problem that fraudulent or exaggerated whiplash claims have presented for the insurance industry and the courts. This was recognised in March 2018 when the Ministry of Justice published a Civil Liability Bill which aims to tackle insurance fraud in the UK through tougher measures on fraudulent whiplash claims, proposing new, fixed caps on claims and banning the practise of seeking or offering to settle whiplash claims without medical evidence. The problem of fraudulent and exaggerated whiplash claims is well recognised and should, in my judgment, cause judges in the County Court to approach such claims with a degree of caution, if not suspicion. Of course, where a vehicle is shunted from the rear at a sufficient speed to cause the heads of those in the motorcar to move forwards and backwards in such a way as to be liable to cause “whiplash” injury, then genuine claimants should recover for genuine injuries sustained. The court would normally expect such claimants to have sought medical assistance from their GP or by attending A & E, to have returned in the event of non-recovery, to have sought appropriate treatment in the form of physiotherapy (without the prompting or intervention of solicitors) and to have given relatively consistent accounts of their injuries, the progression of symptoms and the timescale of recovery when questioned about it for the purposes of litigation, whether to their own solicitors or to an examining medical expert or for the purposes of witness statements. Of course, I recognise that claimants will sometimes
make errors or forget relevant matters and that 100% consistency and recall cannot reasonably be expected. However, the courts are entitled to expect a measure of consistency and certainly, in any case where a claimant can be demonstrated to have been untruthful or where a claimant’s account has been so hopelessly inconsistent or contradictory or demonstrably untrue that their evidence cannot be promoted as having been reliable, the court should be reluctant to accept that the claim is genuine or, at least, deserving of an award of damages.
Claimants should be equally aware of this lens, through which the court may well be encourage to look at a case. A fraudulent claimant will rarely survive systematic forensic shredding of their evidence: but there will be some cases where I fear that an honest claimant may be found to be dishonest, through his carelessness and/or that of his solicitor in the preparation of his case.
But the risk of this can be avoided by thorough consideration of each client’s case, talking to the client and testing the preparation of the evidence at each step of the way: speaking to the client and not assuming that clients read documents sent to them for signature, with scrupulous detail, or indeed, at all.