Fundamental Dishonesty & Trials in Lockdown

Articles | Fri 26th Feb, 2021

Roger André joined 1 Chancery Lane in December 2020. He has a longstanding Civil Fraud Practice and his move to 1 Chancery Lane, whilst still residing in the North of England, enables him to offer enhanced national coverage as he travels nationwide and also does remote hearings.

His Practice encompasses complex / high value Multi Track PI, costs and other areas such as Travel Law. Here, he highlights some recent trials that he has taken part in during the second Lockdown period since early January 2021. In all these trials he has been instructed exclusively on behalf of insurers, obtaining many £000s worth of enforceable costs due to Fundamental Dishonesty and saved insurers from paying out even greater amounts to Claimants in awards and costs claims.

In reverse chronological order:

Maguire & C2 (A Minor) & Lackey v Advantage Insurance Company 5.1.21 (in person) and 22.2.21 (remote),  DDJ Hillman, Liverpool County Court. 

Bus passengers – CCTV – Fundamental Dishonesty – Two Out of Three Ain’t Bad

Roger André was instructed by Rachel Timperly of Horwich Farrelly to represent the insurer.

The 3 claims (one for a 9 year old daughter, through her Litigation Friend & fellow passenger / Mother) for general damages and CBT treatment. It concerned an bus accident in 2016.

Following extensive cross examination and submissions, which included review of CCTV evidence from within the bus, all 3 claims were dismissed. The Mother and Minor’s claims were found to be Fundamentally Dishonest. The Mother had been dishonest in not disclosing to the medical and psychological experts that she had been involved in another RTA a few days earlier, for which she submitted a CNF. At trial she claimed she was not injured in the earlier incident, yet she submitted a CNF claiming for injuries. The Mother also claimed to medical and psychological experts (prior to disclosure of CCTV evidence) that she was sat next to her 9 year old daughter at the back of the upper deck of the bus. She claimed that so forceful was the incident, that she flung her arms and hands out to save her daughter from falling from her seat.  In fact, CCTV showed the Mother was in the seat in front, to the side of her daughter and the alleged body movements of all was only slight. She did not put her hands out to save her daughter. Neither her daughter nor herself were crying and in distress on the CCTV, as was alleged by the Mother. As to the “rather colourful suggestion by Mr André that she was almost salivating on the bus at the prospect of a personal injury claim”, the Judge found that the Mother appeared excited at the prospect of personal injury claims on the CCTV, judging by the way that she reached for pen and paper, rather than going to aid her allegedly distressed and crying daughter.   The Mother had claimed to Psychological expert that both she and daughter were traumatised by the accident, both refraining from catching buses since the accident in 2016; however the Judge found that the experts were given a wrong and exaggerated picture. The claim of her daughter was effectively a joint enterprise, tainted by the Mother’s dishonesty on her behalf, as her witness / Litigation Friend.

The dismissal of the claims resulted in savings to the insurer of up to £25,000 pleaded claims and aprx £28,000 Claimant’s costs. The Mother, as Litigation Friend, was ordered to pay 2 out of the 3 sets of costs to the Defendant, assessed on an indemnity basis in the sum of £8,233. As the song goes, “two out of 3 ain’t bad!”

KEVIN FRANCIS -V- MEHDI MAGHOULI, 19.2.21, DJ Beecham, Clerkenwell CC (remote)

Fundamental Dishonesty finding – a slippery witness

Roger André was instructed by Nicholas Colgan of Horwich Farrelly to represent the Defendant (insured of Capital Underwriting Agencies Group), concerning general damages claimed arising from an RTA in June 2016. Following extensive cross examination and submissions, District Judge Beecham made a Fundamental Dishonesty finding.

The Judgment reasons included the number of inconsistencies and dishonesty as to onset, location, evolution, resolution of symptoms. The Claimant’s evidence was found to be all over the place under cross examination. He was found to be an evasive and slippery witness, not wanting to be pinned down, painful to extract evidence from under cross examination. There was a delayed intimation of claim, which of itself is within limit, but the reasons given for the delay were inconsistent. The Claimant’s evidence as to his reason for stopping at a zebra crossing prior to rear collision chopped and changed. The Claimant was ordered to pay the Defendant £10,194 of enforceable costs.

SAQLAIN v SEARLE, 27.1.21 and 19.2.21, Sheffield CC (remote)  DDJ D’Cruz

Fundamental Dishonesty finding – the force was not with him

Roger André was instructed by Vaishali Mistry of Horwich Farrelly for the insured of Aviva Insurance.

There was a liability dispute as to who was to blame for the collision on a major roundabout at the M62. The claim was dismissed and found in favour of the Defendant at trial, however the exaggeration as to the force of impact and extent / inconsistencies of injuries was found to be Fundamentally Dishonest. The Claimant was ordered to pay the Defendant enforceable costs of £10,535.

MR GULFAM HEYDER KHAN v ANTILO UK LTD (1) MR SALIN SURAG (2) MR MOHAMMED RASHID (3), Birmingham CC, 20.11.20 (in person) and 10.2.21 (remote)

Fundamental Dishonesty – Credit hire or Nil income Tax Return – Can’t have both!

Roger André was instructed by Rachel Timperly on behalf of  the Defendant insurer, Antilo UK Ltd.

This matter concerned a private hire driver (alleged, as will become relevant), who claimed to have been involved in a multi vehicle RTA in 2017. After cross examination and submissions, amongst the findings which led overall to the Fundamental Dishonesty Finding, was that the Claimant was forced under cross examination to either accept that his tax return of zero income from private hire in the relevant taxi plated credit hire period was either true or not. A warning against self-incrimination was given during cross examination. Realising the predicament, the Claimant opted to accept that he indeed had no income as a private hire driver in the relevant period. This was in contrast to the pleaded claim, in which he sought to justify 188 days worth of credit hire for a private hire vehicle and storage of his damaged vehicle, together worth over £24,000. It was also established that his original car had passed its MOT during the 188 days of storage. Overall, the claim was found to be Fundamentally Dishonest due to the round of inconsistencies in the alleged circumstances of the RTA, the onset, resolution, location of symptoms and importantly the said hire and storage issues. The Claimant was ordered to pay the Defendant insurer £12,400 of enforceable costs.

The written Judgment clearly sets out applicable law, including on adverse inferences on failure to call witnesses. The handed down Judgment is available for download here.

PEACOCK v HILL, UK ISURANCE and ONE INSURANCE Ltd, 3.2.21, Wigan CC (in person)

Fundamental Dishonesty finding – liability – CNF – counter claims – multi parties

Roger André was instructed by Annemarie Kirkbride of OCL Solicitors, for One Insurance.

This involved claims and counter claims. The insured of One Insurance initially claimed for vehicle losses against the Defendant, who counter claimed for general damages. Each party blamed the other for the accident. There were 4 sets of solicitors involved, including respective insurers. Roger André obtained a Fundamental Dishonesty finding against the Counterclaimant, for reasons of the overall number of inconsistencies as to alleged accident circumstances, onset, location, resolution of symptoms and force of impact.  Mr Hill was ordered to pay One Insurance enforceable costs of £7,500.

ALIDARYAB YAGHUBI -v- AXA INSURANCE UK PLC, 18.1.21, Manchester CC (remote), Rec. Rigby

Unenforceable credit hire and storage purported agreements – check the terms !

 Roger André was instructed by Andria Moorcroft of Horwich Farrelly on behalf of Axa.

The general damages claim was dismissed on inconsistencies. The Claimant also claimed over £15,000 for credit hire, storage and loss of use. The purported credit hire agreement had a term that the hirer should have had a licence for at least 12 months, but the Claimant had only 4 months; hence an unenforceable agreement. The storage purported agreement was unenforceable, because it said that terms and conditions attached; but they were not.  The Claimant was ordered to pay the Defendant’s (unenforceable) costs.

Ayaz v Advantage Insurance, 7.1.21, Leeds CC (remote), HHJ Gosnell DCJ

s.57 CJCA 2015 Fundamental Dishonesty – Credit Hire – Impecuniosity – Casinos!

 Roger André was instructed by Max Wrigley of Horwich Farrelly for Advantage Insurance.

The Claimant’s general damages claim was found to be Fundamentally Dishonest under s.57 Criminal Justice & Courts Act 2015. The Claimant claimed to have been impecunious for the purpose of credit hire. There was a substantial sum of money in a disclosed bank account, which the Claimant contended was reserved exclusively for a forthcoming house purchase. During cross examination, Roger André put to the Claimant a number of transactions with a casino and regular cash withdrawals at ATMs of hundreds of pounds. Under cross examination, the Claimant was forced to admit that he regularly visited the casino for gambling and the cash withdrawals were intended to be hidden from his wife. As a result, the Claimant was found to be pecunious and the substantial hire claim and period was significantly reduced, though offset against the Defendant’s costs of £10,750 under s.57.