Exemplary Damages in the Tort of DeceitToby Coupe
(1) Johnson, (2) Burns, (3) Gilchrist v (1) Zurich Insurance PLC, (2) Gilchrist
On the 1st November 2016 at Manchester County Court Toby Coupe, instructed by Toby Evans (Partner, Keoghs LLP) and Richard Harvey (Senior Claims Handler, Zurich Insurance PLC) to act on behalf of Zurich Insurance PLC (‘Zurich’), obtained an order that the Claimants and the Second Defendant do pay Zurich £5,000 in exemplary damages and £16,844.04 in indemnity costs, such costs to be enforceable to the full extent of the Order pursuant to CPR 44.16 (1), on the basis that the claims had been found to be fundamentally dishonest.
In February 2015 the Second Defendant hired a Vauxhall Corsa motor vehicle from Salford Van Hire (who were insured by Zurich) for a weekend. During the course of that weekend it was alleged that the Second Defendant had negligently pulled out of a side road into a collision with a passing Ford Focus, whilst carrying four passengers, including his brother (the Third Claimant). When subsequently interviewed about the circumstances and happening of the collision, the Second Defendant stated that he did not recognise the driver of the Ford or his three passengers.
When Claim Notification Forms were subsequently received by Zurich, it became apparent that one of the passengers in the Ford (‘JH’) had provided the same home address as the Second Defendant and the Third Claimant. Intelligence searches via the social networking website ‘Facebook’ revealed numerous links between the occupants of the two vehicles, most notably that JH was in fact in a relationship with the Third Claimant, which explained why she had provided the same home address as the Second Defendant and the Third Claimant.
In those circumstances, the Second Defendant had apparently failed to recognise his brother’s girlfriend, who he lived with, in the Ford following the collision. Of course, it also followed that the Third Claimant had not recognised or subsequently realised that his girlfriend was in the car which they had apparently crashed into, causing her to sustain injury.
When the claims were issued towards the end of 2015, the First Defendant entered a Defence pleading a positive case of fraud and counterclaiming in the tort of deceit for exemplary damages. The claims were subsequently discontinued in April 2016 with Zurich obtaining judgment on the counterclaim and an assessment of damages hearing was listed for the 1st November 2016 to deal with the issues of exemplary damages and costs.