Mr Domenico Lopez v Mr Tyrell Samuda and Motor Insurers' Bureau [2021].
Judgment was handed down on 8 November 2021 by Recorder Aldous QC in dishonest claims made against the First Defendant (who was uninsured) and the Motor Insurers’ Bureau as Second Defendant following a three day trial in the County Court at Central London in October 2021.
The Claimant’s claim included credit hire charges in excess of £96,000.
Recorder Aldous QC found the First Defendant was the cause of the accident but that the Claimant had been fundamentally dishonest as he had made statements which he knew to be false, and furthermore, had given evidence on oath that was similarly false, and which he knew to be false.
Summary
On 14 June 2017 the Claimant was driving his Honda Hornet motorcycle along Crouch Hill, London when the First Defendant drove out of a side road into collision with the Claimant.
The Claimant bought a claim for personal injury, pre-accident value of £1,520.00, miscellaneous expenses of £50.00, credit hire of £96,578.64 (426 days at a daily rate ranging between £150.00 - £165.00 plus VAT and additional extras) and costs.
The First Defendant disputed liability and the Second Defendant (as the insurer of last resort pursuant to the Uninsured Drivers Agreement) put the Claimant to proof of the circumstances of the accident and that the accident was caused by the negligence of the First Defendant.
Issues raised by the Second Defendant
The Second Defendant contended that the Claimant’s claim for personal injury and credit hire were dishonest, as the Claimant had failed to disclose his very significant pre-accident history of back problems and furthermore had another vehicle during the period of hire he had failed to disclose. The non-disclosure necessitated the amendment of the Defence to plead fundamental dishonesty.
Issues which arose during the course of evidence and under cross examination
Personal injury claim:
- The Claimant disputed he told the medical expert he had no relevant past medical history despite having a very significant pre-accident history of back problems.
- The Claimant admitted he signed a witness statement verified by a statement of truth in which he agreed the contents of the medical report without explaining the fact that the report was incorrect when it stated he had no past medical history.
- The Claimant tried to say in cross examination that the GP report, Particulars of Claim and witness statement were all pro forma documents which had been prepared for him and so he could not be responsible for any inaccuracies.
- The Court did not accept the Claimant’s argument that he had no control over the contents of the documents in accordance with the case of Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288
- S57 applied despite the Claimant accepting at trial under cross examination that he had a significant pre-accident medical history.
Credit hire and associated losses:
- Despite the Claimant claiming he could not afford to repair or replace his vehicle until he received the pre-accident value, when it was received he did not use the funds for that purpose.
- The Claimant had available funds during the period of hire but chose not to use it to repair his vehicle. He stated in evidence he could not take the initiative to repair the motorcycle when he had signed up with the credit hire company as it would not be fair to them and that furthermore no one pays out for accidents that are not their fault.
- The Claimant had acquired a replacement vehicle in his name with the intention of starting a joint business venture during the period of hire but failed to disclose it previously within litigation.
The Claimant sought to argue that even if he had been fundamentally dishonest in respect of the personal injury claim or his credit hire and associated losses claim the court was under no duty to dismiss these heads of damage under s57 as the property claims were not dependent on the personal injury claim so not covered by the duty under s57.
Outcome of Court Proceedings
Recorder Aldous QC found the Claimant had a good understanding of the questions he had been asked and furthermore that he had acted unreasonably in incurring the hire charges. In the circumstances, the credit hire charges were not recoverable and there was no award for associated losses.
As to the personal injury element of the claim, Recorder Aldous QC found the Claimant did suffer some short-term soft tissue injuries as a result of the accident, however, as the Claimant was dishonest about a fundamental aspect of the case within the meaning of s57 the claim for personal injury was held to be fundamentally dishonest and was dismissed.
The Claimant is now liable to repay the interim payment in respect of the pre-accident value together with the Second Defendant’s costs (once the genuine elements have been deducted from the costs as assessed or agreed). Permission was also granted to join in the credit hire company to the proceedings for the purposes of cost recovery.
Learning points
- Obtain the Claimant’s full medical records to check if any relevant pre-existing injuries were referred to the medical expert;
- Ascertain whether the Claimant had access to any other vehicles during the period of hire;
- Check whether the documents relied on are “proforma” documents, if so, rely on Molodi; and Review impecuniosity documents to see if the Claimant did have available funds during the period of hire.
This claim was defended by Paul Tyler Burke who is a Solicitor in the Birmingham Vehicle Hire Fraud team.
