The rise in injury litigation: dodgy claims managers?

News | Mon 19th Oct, 2015

An article in the Sunday Times a few weeks ago caught my eye. This revealed the aggressive tactics employed by predatory claims farmers to ensure that as many people as possible who have been involved in accidents bring claims for damages for personal injuries. Their tactics were reported as including appealing to base greed (such as the oft-encountered line: “the money is just waiting in an account for you”) to emotional blackmail (“the other driver could have killed your children. Don’t let him/her get away with it”). The article suggested that the individual salesmen are paid a low base salary but were able to obtain commissions of over £50,000. For those readers with access, the article can be read online at http://thetim.es/1Pt2Dpg.

In the last few months, I have been involved in cases whilst acting for insurers where these issues have very much come to the fore.

In one, the claimant was observed via online investigation work to have undertaken an ‘Iron Woman’ challenge just three days after allegedly suffering a back injury at work, thereafter a marathon and thereafter the ‘Three Peaks Challenge’ all within about six weeks. Her medical report suggested she was effectively crippled for a month before making a slow recovery. This was pointed out to her, accompanied by an application to amend the Defence to plead fraud, whereupon her solicitors applied to come off the record. This was resisted by the defendant, whom I was instructed to represent on the grounds that there was a clear public interest in trying cases of such a nature. The matter concluded via a settlement whereby the Claimant (whom had hastily instructed direct access counsel) consented to the Striking Out of her claim on the grounds of it being an abuse of process and herself personally undertaking to meet the defendant’s not-inconsiderable costs. She made it clear in open court that she had been pressured into making a personal injury claim when she did not really want to.

In another, the claimant in a road traffic accident claim, seemingly had a pang of conscience or otherwise felt unwilling to have to personally speak for his own case from the witness box. He himself wrote to the defendant’s solicitors in terms expressing remorse for his “terrible mistake in bringing this claim”. He blamed his solicitors for “pushing” him into making “a claim which I always said was untrue”. His solicitors also came off the record and when the claimant failed to appear at trial the court acceded to the application to Strike Out on the grounds that the claim was abusive and that the claimant’s conduct was obstructive of the just disposal of proceedings. Qualified One-Way Costs Shifting was dis-applied and the defendant’s costs awarded in full. In addition, the court considered the Claimant’s emails constituted clear evidence of fundamental dishonesty and such a finding recorded in the order.

In a third, and possibly the most curious case, the claimant unexpectedly had an attack of honestly mid-way through my cross-examination of her in a Highways Act 1980 claim. She sought to distance herself from her medical report almost entirely. She averred she was injured, but recovered after a week and not the 14 months suggested by the report. She had no idea where much of the information in the report came from, but blamed her solicitors whom she candidly alleged encouraged her to place a negative spin on her injuries when seeing the reporting doctor in the brief appointment she had with him. Despite her personally sighing the Particulars of Claim, Schedule of Loss and her Witness Statement, all of which made reference to the medical report as (at least impliedly) accurate, she made it clear to the judge – and this was accepted as a fact – that she always maintained that the conclusions of the medical expert were incorrect and exaggerated her injury. The judge held that she could place no reliance upon the report and awarded purely nominal damages in respect of the Claimant’s injury. There was no order as to costs.

The lesson from these cases if they were anything other than a-typical is for defendant parties to consider the potential for such fraud or exaggeration at every point up to and including trial in cases where the same is proper to be put to claimant parties. In the above cases this paid off for the defendant, but caution must be afforded to opportunistic allegations or those for which there is insufficient evidential (let alone professional) basis.