Legal Watch: Personal Injury 27th March 2015 Issue: 057
Fraud/committal Royal & Sun Alliance Plc v Fahad [Lawtel 23/03/2015] is the latest example of a court punishing a claimant for bringing
In this issue:
of proof that an applicant must satisfy to succeed with an
• Fraud/committal
the value of Part 18 requests for further information.
• Watch this space
a fraudulent personal injury claim. It illustrates the burden
application under CPR 32.14 and CPR 81 and also highlights
• Jurisdiction/Rome II
The respondent/claimant had brought a claim in damages against the applicant arising out of an alleged road traffic
accident. The trial judge had found that the accident was
entirely contrived and that the respondent had known the
other driver who was involved, despite his assertions to the contrary. The applicant was the other driver’s insurer.
The trial judge found the respondent’s evidence inconsistent and untruthful, and the applicant was granted permission to bring committal proceedings on the basis that the respondent
had made false statements. The relevant statements were the allegation in the respondent’s particulars of claim that
Events
response to the applicant’s Part 18 request in which he stated
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the accident had been caused by the driver’s negligence; his
that he did not know the driver prior to the accident; and his
statement in his witness statement that he did not know the driver at the time of the accident and only became Facebook
friends with her after the event. The driver’s flatmate had given
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evidence during the trial that the respondent and the driver
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had been in a long-term relationship.
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The applicant submitted that the respondent (1) had made the
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false statements and verified (or caused them to be verified) with a statement of truth; (2) knew at the time that he made
the statements that they were false; (3) acted with the intention of interfering with the due administration of justice; and (4) if the false statement had been persisted in, it was likely that it
would have interfered with the course of justice. The applicant further submitted that, in relation to (3), if the court found
that the respondent knowingly made false and dishonest
statements of the kind alleged, there was an irresistible
and his argument that he had muddled his tenses in his
the due administration of justice. The respondent submitted
the respondent was well acquainted with the driver at the
inference that he acted with the intention of interfering with that he had communication difficulties due to English not
being his first language and that he had got confused with his tenses when he said that he had not known the driver at the time of the accident.
‘The central issue was the existence or absence of a relationship between the respondent and the driver.’ Allowing the application, the deputy High Court judge
held that the issues to be determined before the instant court were essentially the same as those before the trial judge. The central issue was the existence or absence of a
relationship between the respondent and the driver. It was
for the applicant to prove beyond reasonable doubt that the respondent had made the false statements knowing that they were false. The instant court had been impressed by
the flatmate’s evidence and there was no good reason to disbelieve it. The court accepted it in full.
The court could only deduce the respondent’s account of events from the papers before it, as he had not given
evidence and neither had any of the passengers involved in the alleged accident. His right to silence was not absolute
and could be taken into account. The court approached his
evidence with a great deal of caution. He had stated that he did not know the driver at the time of the accident. After the
applicant served a statement from its solicitors showing that the respondent and the driver were friends on Facebook, he
had made a statement claiming that they had only become friends on Facebook after the accident.
The respondent had been resident in the UK since 2011 and had attended an intensive English language course. His
difficulties with the English language had been overstated 02
statement was not accepted. The court was satisfied that time of the accident and accepted the flatmate’s evidence
that they had been in a long-term and serious romantic relationship for some time. The court also accepted the flatmate’s evidence that the driver had told her that she and
the respondent had nearly been caught out by an insurance company because they were friends on Facebook. There
was a good deal of evidence to show that the respondent had been dishonest. The only credible explanation for the
changes in his evidence was that he had been untruthful. The court accepted that the motivation for the respondent
to conceal his relationship with the driver was to deceive the applicant into believing that an accident had occurred which had not. The accident was not real and had been staged. It
could not reasonably be argued that the respondent had
an honest belief in his statements. He had knowingly and deliberately set out to defraud the applicant in a false claim
for damages. In doing that he had sought to interfere with the administration of justice and was in contempt of court,
Airbus considered. The respondent was sentenced to 12 months’ imprisonment.
Jurisdiction/Rome II The application of the Rome II regulations to a fatal accident
Rejecting the claim, the High Court judge held that under
EWHC 626 (QB).
fact, and if foreign law was to be relied on it had to be
claim was considered in Bianco (deceased) v Bennett (2015) The claimant (the deceased’s widow) and her family were
Italian and lived in Italy. The deceased had been hit by a car driven by the defendant in the UK. He died from his
injuries. The defendant had admitted that he was two-thirds to blame.
The claimant claimed damages under the Fatal Accidents Act 1976 and pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. In her schedule of loss, she made
“subrogated claims” under the 1976 Act relating to sums paid and to be paid to the family by the Italian Workers
Compensation Authority (UNAIL) and by her husband’s
employer. It stated that, under the terms of an insurance policy with UNAIL, the claimant was contractually obliged
to seek a subrogated claim where a third party was at fault. The preliminary issue was whether such claims were recoverable.
English law, the content of foreign law was a question of
pleaded and proved as a fact by expert evidence. In the
absence of satisfactory evidence of foreign law, the court
would apply English law. The schedule of loss made no reference to Article 85. However, the 2004 Regulation, as
a directly enforceable instrument of EU law, was part of
English law and a party did not have to plead matters of domestic law. The position was different in relation to the provisions of Italian law, which was the foundation of the subrogated claims. The defendant was entitled to object to
the claimant’s reliance on the Italian law which had since been identified as founding her case under Article 85. The Italian law case had not been pleaded and there was no
admissible evidence to support it. The subrogated claims as pleaded could not succeed. Regulation 864/2007 (Rome II) applied to claims in respect of accidents and the applicable
law was that of the country in which the damage occurred. The claim was governed by English law and the only
The defendant submitted that there was no head of loss
available basis for a claim in respect of her husband’s death
include the subrogated claims and that payments from
claims were not causes of action possessed by the husband
the assessment of her claim as irrelevant. He argued that
they could not be brought within the terms of the 1976 Act.
and proved by expert evidence. The claimant argued that
provided that all benefits coming to a dependant as a result
Regulation 883/2004.
Article 85(1)(a) was a choice of law provision by which the
under the 1976 Act which was permitted the claimant to
was under the 1976 Act and the 1934 Act. The subrogated
the husband’s insurer and employer were disregarded in
before his death so the 1934 Act was not applicable and
any claim based on Italian law would have to be pleaded
The claimant had the benefit of S4 of the 1976 Act which
the sums claimed were recoverable pursuant to Article 85
of death were to be left out of account.
‘…the applicable law was that of the country in which the damage occurred.’
home law of the institution providing benefits in respect
of an injury would govern whether the institution was subrogated to rights enjoyed by the beneficiary against the
wrongdoer and, if so, the extent of the subrogation. That provision did not require the court of the foreign member
state to apply the law of the institution’s home jurisdiction to the claim against the defendant. There was no authority for
the proposition that the law of the institution’s home country
applied to determine the existence and extent of the rights to which the institution was subrogated.
03
Watch this space The Social Action, Responsibility and Heroism Act 2015 will
come into force on 13 April and will apply to claims that a person was negligent or in breach of statutory duty where the act or omission giving rise to the claim occurs on or after
that date. The Act has been heavily criticised for seemingly adding nothing to the existing law but merely reemphasises that in considering a claim in negligence, the court must
take account of the context in which the alleged negligence occurred.
On the same date S57 Criminal Justice and Courts Act 2015 comes into force. It states that if in a personal injury claim
‘the court finds that the claimant is entitled to damages
in respect of the claim, but….on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the
claimant has been fundamentally dishonest in relation to the
primary claim or a related claim...the court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
The duty…. includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.
The court’s order dismissing the claim must record the amount of damages that the court would have awarded
to the claimant in respect of the primary claim but for the dismissal of the claim.’
The effect of this is that if part of a claim is tainted by fraud the court is required to dismiss the whole claim, including
any ‘legitimate’ element, unless the claimant would suffer ‘substantial injustice’. It also modifies substantially the Supreme Court ruling in Summers v Fairclough Homes Ltd (2012). It had been held that the court had power under
the civil procedure rules and under its inherent jurisdiction
to strike out a statement of case at any stage of the proceedings, even when it had already been determined
that the claimant was, in principle, entitled to damages in an 04
ascertained sum. However, that power was to be exercised only where it was just and proportionate to do so, and that
was likely to be only in very exceptional circumstances. The power had not been exercisable in that case.
The new provisions do not apply to proceedings started by the issue of a claim form before 13 April but are otherwise retrospective.
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