Genuine claimant loses pay out after supporting fundamentally dishonest claim
News And Events26/01/2021
Keoghs Corporate Risks motor team and BFS Group Ltd have successfully defended a phantom passenger claim at trial, securing a finding of fundamental dishonesty. The judgment provides an important insight for corporates and self-insureds as to the cost and repercussions on genuine claimants who aid and assist the fraudulent claims of others.
The case involved the claims of three separate claimants for personal injury arising from a road traffic accident with a BFS vehicle. After considering the mechanics of the accident, it was determined that liability was not an issue. However the BFS driver staunchly maintained that he only saw two individuals in the claimant’s vehicle following the accident. A defence was made citing the third claimant as a phantom passenger.
There were a number of preliminary issues dealt with prior to the trial itself.
The first claimant lodged an application to rely on additional evidence that did not form part of their initial disclosure and was only disclosed to Keoghs and BFS eight days prior to trial. The claimant cited an administrative error, yet they had known about the alleged issue long before applying to rely on the evidence. As a result the application was rejected by the court.
Also, no witness evidence was served for the second claimant. An unless order had previously been made concerning this issue which the claimant again failed to comply with. Unsurprisingly at this point, the second claim was struck out.
Whilst the trial was listed for a maximum of one day, the judge decided that, due to the seriousness of the fundamental dishonesty allegations and the potential financial implications for the claimants, she would take additional time to consider before then handing down a judgment at a separate hearing.
At the judgment hearing, the court placed great emphasis on the witness testimony of BFS Group’s driver, who confirmed he had immediately telephoned the group’s accident management agent following the collision, answering a variety of questions including how many passengers were in the vehicle. He confirmed that, whilst the first two claimants were in the front driver and passenger seats, the rear seats were empty of people or luggage.
The judge determined that the third claimant was not in the car and the claim was false and opportunistic, therefore fundamentally dishonest.
This left the court to consider what this meant for the first claim, given the claimant’s dishonesty in stating there was a third person in the car.
It was determined that the first claimant may not have been fundamentally dishonest in relation to their primary claim, having genuinely suffered injury and loss, but that fundamental dishonesty stood under Section 57 of the Criminal Justice Act (8).
Essentially, whilst the first claimant had initially been awarded over £8,000 for damages, this was negated when they decided to dishonestly support a fraudulent claim. Instead the awarded sum would be off-set against the defendant’s cost entitlement, given the claimant had lost their QOCS protection with the finding of fundamental dishonesty.
This case is an important indicator of the zero tolerance stance taken by Keoghs on behalf of corporate clients when defending fraudulent claims.
The judgment also provides a welcome insight as to the application of Section 57(2) of the Criminal Justice and Courts Act 2015 when determining the implications for claimants who have a genuine right of action and legitimate claim, but decide to aid the fraudulent claims of others.