In Molodi v Cambridge Vibration Maintenance Service (1) and Aviva Insurance Limited (2) [2018] EWHC 1288 (QB) the High Court have allowed the Defendant’s appeal and dismissed the Claimant’s claim on the ground that the they had been fundamentally dishonest within the meaning of Section 57 of the Criminal Justice and Courts Act 2015.
Liability was not a complex issue on this matter – it was clear that they were responsible for causing this road traffic accident.
The evidence provided by the Claimant however was littered with dishonest information and culminated in the exaggeration of the longevity of his symptoms, the cost of the damage to the vehicle and the requirement for ongoing treatment and time off work.
The Defendant in this matter did not plead fraud however as has been outlined previously within the case of Kearsley v Klarfeld [2005] EWCA Civ 1510 there is no obligation from the Defendant to do so however any suggestion that the claim has limited basis or that the veracity of the evidence is questioned must be set out in accordance with CPR 16.5
The Claimant’s statement of case in the present case was inaccurate and included information which could only be considered dishonest in nature. Fraudulent whiplash claims have of course presented a significant problem for the insurance industry and the Courts for a number of years. Courts have been warned to address such claims with caution, if not suspicion in assessing whether an award for damages would be appropriate or necessary.
The Appeal Judge overturning the original decision suggested that the evidence from the Claimant was inconsistent, unreliable and untruthful and that in view of this the High Court Judge had “adopted a much too benevolent approach to evidence from a Claimant”.
The medical evidence was noted to be of key importance and to require keen inspection in whiplash claims and in particular the medical records and history of the Claimant must be considered in detail by the expert. Of course it is important within all claims to ensure that causation can be established however the test here must be very stringent, carefully considering whether the symptoms reported, and level of problems allegedly suffered would property be attributable to the severity of the accident.
It was the primary submission of the Defendant within this appeal that the Claimant had been fundamentally dishonest and that the claim should therefore be dismissed. Although the Defendant had admitted liability for the accident the Defendant had originally submitted (and maintained) that the Claimant had failed to prove his case that any injury had occurred.
Fundamental dishonesty isn’t an issue which is limited to whiplash claims and is a point which is often raised within clinical negligence and more high value claims as an exaggeration issue, where it is suspected, either by a medical expert or the Defendant solicitor themselves that a Claimant is exaggerating the severity and ongoing level of their symptoms which they are seeking to attribute to the alleged negligence. This issue is often dealt with by way of surveillance evidence which unearths such dishonesty if indeed there has been a problem, and in a lot of cases will be dealt with through a late acceptance of a previous Part 36 offer if there is an offer open for acceptance. This will result in a recovery of some sorts for the Claimant but how much they retain of such damages will depend on any sanction that is applied by the conducting solicitor for recovery of their costs after that point..
However, where an offer has not been made and the Defendant seeks a must harsher sanction by way of dismissal of the claim the risks of pursuing a claim based on dishonest evidence are much higher.