It is a fact of life for the personal injury lawyer that fraud will raise its ugly head from time to time whether one acts for claimants or defendants. I have observed an interesting shift over the decade I have been in practice. Ten years ago judges seemed not only uninterested in suggestions of fraud, but many appeared to find the concept positively distasteful. I have had judges make frankly bizarre findings about what your average person can be “mistaken” about, in order to avoid finding them liers…[more] Over recent years I have come across allegations of fraud more and more frequently, whether it is suggestions of conscious exaggeration or cases as serious as staged accidents. I haven’t managed to work out whether this is because fraud is more prevalent in these economic times, insurers are becoming increasingly sophisticated in their fraud detection, or some other explanation. Hand in hand with this I have also noticed an improvement in the willingness of many judges to consider these allegations carefully and, if necessary, make robust findings.
A number of courts are becoming more proactive in dealing with cases where fraud is in issue. I recently had a straightforward CMC in an alleged staged accident case where I act for the insurer. In the course of the hearing the judge gave a standard warning that the court in question now informs the police as a matter of course if a case concludes with a finding of fraud on the part of the claimant. Counsel was directed to pass this back to the claimant, not as a prejudgment of the particular case, but for the claimant’s information: something which that court now does routinely in all such cases. I have come across this approach a number of times and I have to say I find it remarkably effective whether acting for claimant or defendant, honest or dishonest.
Some I have discussed this with have expressed the view this amounts to bullying on the part of the court. I think not. It is no different from warning a claimant that there might be costs consequences if they lose. Honest clients are undaunted because they have the courage of their convictions. Dishonest clients who think the civil courts are an easy route to a fraudulent recovery are told in no uncertain terms that there will be consequences if they are caught out and given an opportunity to bail out at an early stage. A couple of years ago a similar warning in one of my cases caused the claimant to get up and walk out there and then, never to be seen again. Possibly not what Lord Woolf had in mind when putting together the CPR, but I have to say I am all for proactive case management of this sort, even though it is an example of lateral thinking!