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Judy Dawson

Judy Dawson obtains a £17,000 third party costs order against a rehabilitation services provider.

The Park Square Barristers Insurance Fraud Team has been advising a number of different solicitors and insurers in respect of rehabilitation service provider claims and adopting different strategies to deal with the same. The team has had a number of successes in obtaining third party costs orders against such providers, culminating in an order against QTP Solutions Rehabilitation Limited in the last days before lockdown.

The case had an unusual history. The two Claimants alleged that they had been innocent passengers in a road traffic accident in which their vehicle had left the road and hit a tree, they brought proceedings against their driver’s insurer. The First and Second Claimant brought significant claims for costs owed to the third party for physiotherapy and cognitive behavioural therapy which totalled almost £6,000. This was supported by their witness statements. Significantly in the case of the First Claimant, Part 35 responses were served stating that he had attended for several sessions of physiotherapy treatment at an address in Bradford within a certain time period. His claim was further supported by a purported physiotherapy assessment on QTP headed paper which gave the clear impression that this was a face to face assessment (for example “Reflexes, strength and skin sensation on examination appeared normal”) followed by a discharge report which would have left the reader in no doubt that the physiotherapy was carried out on a face to face basis as it was said to include “deep tissue massage” and “trigger point massage”. The discharge assessment further stated that the Claimant had double sessions of physiotherapy “to reduce the number of visits”.

A note in the First Claimant’s medical records appeared to suggest he had left the country shortly before the period in which such treatment had been alleged to have taken place, and on the first hearing date for trial, the matter was adjourned with the Defendant obtaining an order for third party disclosure against the airline he had utilised to confirm when he had left and returned to the UK.

Such disclosure proved illuminating; not only had the First Claimant been out of the country for the entire period in which the alleged physiotherapy had been provided, but he had been in the air returning at the precise date and time he had been examined for his psychological report (the author of that report later stating that the examination had been conducted over WhatsApp).

The First Claimant’s claim was struck out with the Defendants being given leave to enforce their costs against him (with the Second Claimant’s claim also being struck out due to various breaches including the failure to serve a trial bundle). A wasted costs application against the Claimants legal representative was compromised. The Defendant applied successfully to join QTP Rehabilitation Solutions Limited as a third party, contending that they should pay a proportion of the Defendant’s costs noting that the proceedings were significantly to their benefit with claims on their behalf constituting roughly half of the damages claimed and that it was just in the circumstances for the third party to pay the costs.

The third party subsequently produced two witness statements and brief further documentation which raised more and significant questions as to their veracity, failed to produce numerous documents ordered to be disclosed by the Court, stating that such documents had either not been created or been destroyed, and questions were put to the physiotherapist who had purportedly carried out such treatment, the responses to which were admissions that the assessment and discharge reports were inaccurate and misleading, and that all the First Claimant’s treatment had been carried out over WhatsApp.

The Court held that the Third Party should pay half of the Defendant’s costs of the original claims, and the entirety of the costs relating to the third party costs order, a total of over £17,000. The judgment was a lengthy one and can be accessed here

Contact Judy’s clerks

Francine Kirk on 0113 202 8605

Talia Webster on 0113 213 5207

Daniel Highfield on 0113 213 5207

Patrick Urbina on 0113 213 5250