27/03/2020

No witness? No problem!

As Mark Twain famously said, “if you tell the truth, you don’t have to remember anything.” A failure to heed this advice can lead to problems for claimants who exaggerate or fabricate their claims. Where claimants fail to keep their story straight, judges are only too happy to not only dismiss the claim, but find that the claimant is fundamentally dishonest, resulting in a costs penalty.

This is particularly useful where a defendant finds themselves without a key witness or other evidence, and it is likely that the claimant did, or could have, suffered an injury. Whilst breach of duty cannot be denied as a result, it does not follow that the claim must be settled. Claimants sometimes seem to forget that they still need to prove their claim.

Take for example a recent case of mine. The claimant had claimed for personal injury and vehicle damage after our insured’s motorbike collided with his car. Our concerns were as follows:

  • The claimant had suffered injuries in at least six other accidents in the last five years despite not driving for a living.
  • The claimant failed to disclose the index accident during examinations following subsequent accidents occurring in the months after.
  • The claimant took 18 months to intimate a claim.
  • Weight differential between the defendant’s motorbike and the claimant’s Ford Focus.
  • Physiotherapy invoice of questionable authenticity, failure to disclose treatment records and potentially overlapping physiotherapy between the various accidents.
  • His witness statement contradicted his comments to the expert about the effects of previous accidents.
  • Shared registered office between the engineers and treatment providers.

We were unable to contact the fault driver, who was based in Germany, and so we had no option but to proceed without serving any evidence from him, limiting our witness evidence to a statement from our Investigations Team covering the questionable links between engineer and treatment provider.

After service of witness evidence, all of the concerns were pointed out to the claimant’s solicitors and, in essence, I pointed out that the defendant does not need its own evidence on causation when it can use the claimant’s own evidence against him.

As the claimant did not have any assets of note, a commercial decision was taken by the client to offer to allow the claimant to discontinue his claim on a “drop-hands” basis, with the claimant’s solicitors being placed on notice of our intention to seek a finding of fundamental dishonesty at trial if he did not. The claimant then discontinued his claim, saving our client the costs of the claim and without the cost and risk of running to Trial.

The judgment in Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB) is very useful to reference in such cases. The High Court Judge in that case found that the claimant was fundamentally dishonest because he had been demonstrably inconsistent, unreliable and untruthful about his accident history and gave evidence at trial which was inconsistent with his claims notification form. Had this claim run to trial, we would have used this judgment to submit that the claimant should be found to be fundamentally dishonest, his claim dismissed even if a genuine injury had been suffered, and the defendant’s costs be enforceable against the claimant.

The fact that our driver was not on board did not prevent us from securing a good saving for our client. The claimant’s evidence was all we needed to defeat the claim.