Psych! Similar fact vs expert evidencePark Square Barristers
Five Claimants, all represented by Ersan & Co Solicitors, brought appeals against the case management decisions of HHJ Backhouse, refusing to debar the Defendants from relying at trial on a solicitor’s witness statement containing similar fact evidence.
The file Claimants were amongst over 370 who had instructed Ersan & Co to bring personal injury claims following minor road traffic accidents. The claims were all brought though the portal. In the similar fact witness statement it was said that of the 372 Claimants:
· 95% alleged in their claim notification forms that they had suffered psychological injuries;
· 67% were advised by their first medical expert to obtain a psychiatric or psychological report;
· 68% obtained a psychiatric or psychological report.
It was said on behalf of the Defendants that these figures were unusually high and reliance upon the similar fact evidence was sought by the Defendants to suggest that the individual claims were the product of a cynical conveyor belt claims process.
The Claimants applied to have the similar fact witness statement excluded as evidence and, having failed in the application before HHJ Backhouse, sought to appeal on 5 grounds, with permission to appeal being granted in relation to only 2:
· That the witness statement amounted to impermissible expert evidence;
· That the evidence was unreliable.
After a careful consideration of the relevant case law and the contents of the witness statement itself, Freedman J dismissed the Claimants’ appeal. He did however make observations of several potential weaknesses in the similar fact evidence and concluded that it would be for the trial judge to determine the probative value of the evidence.
The deployment of similar fact evidence by insurers when defending spurious claims is nothing new – it might be used to demonstrate the unusually high frequency with which a claimant brings claims, or commonalities between claims brought by different claimants, such as accident circumstances, accident location, service providers etc. The present cases were unusual in that the concerning features were the unusually high rate of psychological claims brought following minor road traffic accidents and the commonality of the firm of solicitors instructed by the claimants.
The judgment is the first to consider the admissibility of such similar fact evidence and confirmed that it is a legitimate tool in the insurers’ arsenal. It also highlighted potential pitfalls when preparing such evidence and affirmed that the trial judge is the ultimate arbiter of the probative value of such evidence. Importantly, such similar fact evidence was concluded to be evidence of fact, and not expert evidence.
Richard practises in civil insurance fraud. He was a founding member of the civil fraud team at Sovereign Chambers before the merger which formed Park Square Barristers. Richard is instructed by most of the country’s leading firms specialising in civil insurance fraud and many of the UK’s insurance companies.
Richard has extensive experience in all areas of civil fraud including employer’s liability and public liability, but mainly in relation to road traffic accidents. He has been instructed on numerous occasions in cases involving fabricated, staged and induced (‘slam-on’) accidents, bogus passengers and phantom witnesses, low-velocity impacts (LVIs), and exaggerated personal injury and damage claims.
He has expertise in dealing with individual frauds, group and family frauds, and wider criminally organised fraud rings.
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