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Being alert to confirmation bias can protect you from paying £250,000 for a fraudulent claim…

  • Legal Development 20 July 2020 20 July 2020
  • UK & Europe

  • Insurance & Reinsurance

Clyde & Co. was instructed by AXA to investigate and deal with a case where there were potential arguments in relation to fraudulent exaggeration. It was suspected that Mr Kadir was purporting to be far more injured than he actually was, and the hope was that we could engage our Project Martello strategy to defeat the claim in its entirety.

Being alert to confirmation bias can protect you from paying £250,000 for a fraudulent claim…

When a case is referred and brief intelligence searches are undertaken that seem to indicate there is a potentially strong Section 57 argument to be made, it is sometimes easy to get overexcited.

That excitement can lead to confirmation bias, i.e. evidence is interpreted through the lens of what you want it to mean or represent. Everyone is susceptible to this type of bias so inserting challenge into our process provides the necessary resilience.

To protect the client from costly and preventable errors, the litigator needs to stay alert to this trap and consider does this evidence show what I think it shows?

That can mean different things to different people, but in our view, best practice has always involved a rigorous and robust process where findings are systematically checked and validated by not only the investigator who finds the information, but by a second investigator who comes to the case cold to review those findings before finally passing them onto the litigator who will check them again before using any of the evidence that has been discovered.

In the Kadir case, AXA was presented with what on the face of it seemed to be a Claimant who may have been exaggerating his symptoms dishonestly. That certainly seemed to be the conclusion that some of the medical experts drew and on that basis, brief searches were undertaken.

A proper reading of the advice from our intelligence team indicated that whilst they suspected the profile they found might be the Claimant – they couldn’t be sure.

The profile indicated a fairly fit and healthy individual doing things he told the medical experts he couldn’t do. For instance, there was an indication from the Claimant that he was unable to drive (or even get into a vehicle for that matter), but the social media searches indicated that he had not only purchased a vehicle, he’d driven it across Europe to Turkistan.

That’s quite a trip, and one can understand why a defendant would want to believe that they had found the correct profile.

However, there were certain worrying signs that indicated the person in the profile (despite having the same name, appearing to be the correct area of the county and being the correct age) was not the correct person.

For instance, the Claimant in our case was married and had two children and the person in the profile that had been located had not posted any pictures of a wife or children.

That’s obviously not determinative, but it does lend doubt.

Further, the Claimant's medical records indicated that he was not a smoker, and that certainly wasn’t consistent with the pictures in the profile we had located.

Of course, some people don’t post pictures of their family on Facebook and plenty of people aren’t entirely honest with their doctors whenever it comes to whether or not they smoke.

When presented with uncertainty, it’s important to check against things which are objectively verifiable. You aren’t just looking to see if X proves Y – you are also supposed to be thinking about whether or not X disproves Y (even if you don’t want it to…).

After some careful checking, we discovered that the person in the profile we had initially found was overseas when he was attending at his local GP. He’d been with his GP for 20+ years and the medical records were unlikely to be wrong – so it was far more likely that we had located the wrong profile…

As disappointing as that was, once we’d concluded that we’ve probably got the wrong guy we had to start again from the beginning.

We did, and found a profile for a different person.

This time, the family seemed to fit and the age / area. Even so, it was a struggle to verify we had the correct person.

The tipping point came when we reviewed one photograph from his social media – which appeared to have been taken from the window of a property.

Searches of Google Street View from the various linked addresses revealed a potential match.

Knowing that they were on the right track, our Intelligence team were then able to definitively verify the profile beyond doubt with some additional searches and to our relief, the profile that had now been linked to the Claimant was even more damaging than the previous one even though it belonged to a completely different person!

Surprisingly, this person had also driven to Turkistan where he had then engaged in clambering over rocks and other fairly strenuous activities which were completely at odds with the case that he had presented.

We employed our Project Martello strategy and within 3 weeks of amending our defence, the Claimant discontinued a claim that had been pleaded up to £250,000.00.

That’s a great result, but what would have happened if we hadn’t checked our work and questioned our thought process?

We’d have disclosed Facebook evidence relating to the wrong person and not only lost any credibility we might have had, we’d also almost certainly have tipped off the Claimant to delete his actual profile and the evidence we used to defeat this high value claim would have been lost entirely.

That would probably have meant we would have had to negotiate some sort of settlement or taken our chances at trial with far less ammunition.

More important than the financial aspect however is the underlying truth that when we accuse a Claimant of dishonesty, we simply cannot do it in a haphazard or careless manner.

Serious allegations demand a serious and thorough analysis of the evidence.

Put bluntly, it’s not fair to the parties in the litigation to go about this type of work in a careless way however excited one might get by what one thinks they’ve found.

End

Additional authors:

Zeshan Noor

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