Following Jemma Lewis' recent alert titled The rise and fall of fundamental dishonesty, we have been monitoring the resurgence of and focussing on judicial reasons for fundamental dishonesty (FD) findings.
In our earlier alert we discussed the inconsistency in judicial approach and an LSI claim where FD was found by DJ Mody sitting in Birmingham County Court. In that claim the judge made this finding because the claimant was inconsistent in response to reasonable questions and tried to blame legal representatives, family, experts and medical practitioners for this.
FD findings in motor claims are more frequently made in claims involving LSI, exaggeration and phantom passengers than any other fraud type of claim, but this year FD findings in phantom passenger claims have been more frequent than in exaggerated claims, but still come second to LSI claims.
AXA Commercial case success
AXA Insurance UK Plc recently secured an FD finding, again made by DJ Mody sitting in Birmingham, in relation to an LSI and phantom passenger claim.
The claimant driver made a claim for personal injury, total loss of his car and lost earnings following a rear end shunt with AXA's customer. He alleged that his wife was a passenger in the rear of the car with a bowl of soup on her lap. Initially there were concerns that this was a LSI claim but it subsequently became apparent that a phantom passenger claim had been presented.
Evidence was disclosed on behalf of the defendant regarding the claimant’s'’ refusal to provide mobile phone records, deleted WhatsApp messages, images of boxes on the rear seats of the claimant's car (not the claimant's wife as alleged), contradictory medical records and documents proving that the claimant didn’t own the car as alleged.
This evidence, together with clever cross-examination by counsel, Louisa Denning of No 5 Chambers, led DJ Mody to conclude that the passenger who was allegedly sitting in the rear of the car with a bowl of soup, stew or food on her lap, was not in the car and so it followed that she could not have been injured and her claim was dismissed.
The driver's claim was also dismissed by reason of the "related claim" of his wife which he supported and advanced. This was pursuant to the guidance of Mr Justice Spencer in our case of Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB) as there were fundamental inconsistencies in his evidence making him "a totally unreliable witness who sought to manipulate his claim to receive as much in the way of compensation as he can". In contrast, AXA's witness was an entirely honest one who gave clear and precise evidence.
The oral evidence given by the claimant was described as implausible and contradictory and his "propensity to argue the inarguable" led to the conclusion that he was an unreliable witness. The claimant’s continued argument that the images showing a box on the rear seat were in fact his wife wearing a hijab was rejected and made his evidence difficult to believe.
Both claims were dismissed with findings of fundamental dishonesty, the return of an interim payment and disapplication of QOCS. Interestingly, the order stated that both the claimants and their solicitors were all jointly and severally liable to pay AXA's costs in the sum of £15,000, and we recovered payment in full from the solicitors.
Conclusion
These are not the only two fundamental dishonesty findings made by DJ Mody, but they do demonstrate, with interest, the willingness of the judiciary in Birmingham County Court to listen to and accept cogent arguments and evidence of fraud, particularly where the claimants' evidence is implausible, contradictory and unreliable. Importantly, and something that is often unpredictable, was that the AXA's witness gave "clear and precise evidence" without which might have led to a different conclusion. A poor defendant witness can sometimes, frustratingly, lead to the judiciary erring to the side of the claimant who might have been an equally poor witness.
Knowing your judge is important in all UK jurisdictions and something which Steven Keenan spoke about in relation to Northern Ireland at our recent fraud conference, and ‘does court location really matter?’ is a question that George Brown explored.
If you would like to discuss the details of these claims or the topics discussed at our counter fraud conference, please contact one of the below.
