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News | Tue 18th Aug, 2015
I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.
The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.
Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).
The Claimant submitted a Notice to Discontinue.
His solicitors came off the record as acting for him.
The Defendant applied to have the Notice of Discontinuance set aside.
On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including:
that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant;
indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident;
that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions;
the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and
he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).
The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.
The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR):
defendants should be less prepared to accept the conclusions of medical professionals as face value;
claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms;
charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for;
the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?