Anna Wilkinson secures fundamental dishonesty finding and discusses Menary v Darnton
Park Square BarristersAnna Wilkinson appeared on behalf of the First Defendant insurer in the Claimant’s claim for a road traffic accident which it was suspected had been staged or had not occurred at all. The Second Defendant was not indemnified and had not co-operated with his insurers. The Claimant made a claim for personal injury, vehicle damage, hire and storage. Following the drafting of the defence the claims for hire and storage had been dropped, although they were, the First Defendant argued, still significant heads of loss in terms of the Claimant’s dishonesty.
The Claimant was not present on the day of trial as he was abroad and an application to adjourn made on his behalf was unsuccessful. An application to strike the claim out was unsuccessful as the Claimant wasn’t absent for the purposes of 39.3(b) since he was legally represented.
The trial therefore continued in the absence of the Claimant and one of his witnesses, with only one live witness who had allegedly been a passenger in the Claimant’s vehicle, though had not intimated a claim, giving evidence.
HHJ Belcher found that the only live witness present for cross-examination was “wholly dishonest” and that she could not find on the evidence before her that the collision had occurred. She therefore dismissed the claim. She then went on to consider the issue of fundamental dishonesty.
In light of conflicting invoices for vehicle storage and hire and the alleged “hire car” being registered to the taxi company for whom the Claimant worked, rather then to the alleged hire company, Miss Wilkinson asked the judge to bear in mind that it was the claim rather than the Claimant which needed to be dishonest, for a finding under CPR 44.16 and as discussed in Menary v Darnton. (See summary at the end of this article).
The Judge stated that although it was a significant finding to make in the absence of a Claimant, she could find that the claim was fundamentally dishonest on the circumstantial evidence before the court. She found that the documents in respect of storage and hire were not genuine documents and had been an attempt to make claims for losses which had not been incurred. Accordingly the Claimant was ordered to pay the insurer’s costs of defending the proceedings, enforceable under CPR 44.16.
Menary v Darnton
This was an appeal heard by HHJ Hughes QC in the Portsmouth County Court in December 2016. The Claimant alleged that the Defendant drove his motorcycle into a collision with the rear of his car, causing injury and loss. The Defendant however said that whilst taking evasive action which caused his bike to fall to the ground, there was no impact at all between the motorcycle and the car. The Defendant therefore alleged that this was an entirely fabricated claim – there was no impact, therefore there could not have been any injury or loss. In spite of the court at first instance finding there was no collision, the District Judge found that there was no fundamental dishonesty in a Claimant presenting a claim from an impact that never occurred.
The Court on appeal found the initial judgment to be incorrect, ruling that, by presenting a claim when there was no accident, there was clearly fundamental dishonesty. It is widely accepted that it was a conscious decision to use the word “claim” rather than “claimant” in respect of fundamental dishonesty when drafting CPR 44.16. Where a claim has to be found to be fundamentally dishonest, a Defendant does not have to establish fundamental dishonesty on the part of the Claimant. However, as HHJ Hughes recognised in his judgment, the claimant will very often be at the root of the dishonesty. In a claims world driven by accident management companies, where claims are a commodity to be turned into profit, it may well be, as HHJ Hughes recognised, that “a credulous claimant might be used by lawyers to advance a dishonest claim”.
Whether the claim or the claimant is fundamentally dishonest, the outcome should be the same – a finding of fundamental dishonesty and costs awarded for the insurer.