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Fundamental dishonesty: Clyde & Co successfully defend exaggerated £600,000 claim against local authority

  • 24 March 2021 24 March 2021
  • UK & Europe

  • Insurance & Reinsurance

Clyde & Co have successfully obtained the dismissal of a claim against a local authority, which had been dishonestly exaggerated to a value of more than £600,000. This decision represents an outstanding outcome for our client and demonstrates the market leading abilities of Clyde & Co in defending claims on behalf of local authorities and claims falling within the ambit of section 57 of the Criminal Justice and Courts Act.

Fundamental dishonesty: Clyde & Co successfully defend exaggerated £600,000 claim against local authority

Smith v London Borough of Haringey [2021] EWHC 615 (QB)

The client was a public body and any damages would have effectively been paid from taxpayers’ money.  It is important that local authorities and other public bodies are not seen as an easy target and that they robustly defend fraudulent claims.

Despite the Claimant having suffered a genuine but minor injury, the High Court held that the weight of evidence we presented was such that the entirety of the claim should be dismissed. A finding of fundamental dishonesty pursuant to section 57 was made. The scale of the exaggeration was such that the Court found that the genuine damages award would have been limited to around £3,000.

This demonstrates the importance of thorough and forensic examination of a Claimant’s medical records and such entries are cross-referenced with witness evidence and other key documents presented in the litigation. In addition, surveillance evidence, when properly obtained and used, can be vital in proving the extent of the Claimant’s physical abilities and perhaps more importantly, in verifying or contradicting the Claimant’s abilities as reported or claimed.

Finally, the importance of carefully selected medico-legal experts, who are able to objectively and forensically consider the evidence and report to the Court in an informative and unbiased manner should not be underestimated.  Master Cook accepted the views of our experts in their entirety, providing further grounding to our submissions.

Background

The Claimant was employed as a Team Leader in a Specialist Care Home.   In April 2014, she was assaulted by a service user with learning difficulties. Liability for the incident was agreed 75/25 in favour of the Claimant, with the outstanding issue relating to the extent of her injuries and consequential special damages.

Initially, the Claimant issued a portal Claim Notification Form (EL1) for Low Value Personal Injury Claims in December 2014 in which the value of her claim was said to be up to £10,000. Her injuries were stated as being limited to soft tissue injuries to her lower back and right upper forearm, requiring a period of 20 days absence from work.

However, upon the issue of proceedings, the claim form initially sought damages of £500,000. The Claimant subsequently alleged that the assault precipitated chronic pain in her lower back, and subsequent symptoms of low mood and depression leaving her unable to work. She sought general damages and a loss of income to her intended date of retirement (2036) valued at over £644,000.  The Schedule of Loss stated that she had not “experienced any back problems prior” save for a temporary whiplash injury. In addition, the Claimant denied experiencing any other limitation to her pelvis and legs prior to the incident.

Both parties obtained expert orthopaedic and psychiatric reports.  Consequential to these examinations and a review of her medical records, several concerns arose with the presentation of the Claimant’s claim.  The Claimant had concealed a pre-existing history of back problems, including inconsistent reporting of the symptoms of the ‘temporary whiplash injury’.  In addition, the presentation of symptoms and clinical signs during examinations with our experts raised concerns about the Claimant’s veracity. These concerns were further elevated when surveillance evidence indicated clear inconsistencies with the level of disability reported by the Claimant.

In response to this overwhelming evidence, we pleaded the Claimant has been fundamentally dishonest in the presentation of her claim with the result it should be dismissed in its entirety pursuant to section 57.

Trial

The claim proceeded to Trial. The Claimant represented herself, as her previous solicitors had been removed from the Court record in January 2020. The Claimant acknowledged the serious allegations made against her and elected to proceed with her case.

We submitted that the Claimant had suffered a genuine injury during the assault, but that this was limited to a soft tissue injury to her back for three to four months, and a wrist injury lasting between two to three months.

We submitted that the Claimant had been fundamentally dishonest in the presentation of her claim in the following respects:

  1. Seeking to conceal her pre-accident history of back problems;
  2. Seeking to understate the consequences of a road traffic accident in April 2013;
  3. Demonstrating inappropriate clinical signs during examination with our experts, causing concerns about her reliability and potential for exaggeration;
  4. Reporting a level of disability to the experts and within both the Schedule of Loss and her witness evidence which was inconsistent with video surveillance of her abilities;
  5. A review of the medical records post-accident indicated inconsistencies as to the history of alleged injury;
  6. The value of the claim had grown exponentially without explanation.

     

We directed the Court to the appropriate case law, specifically, London Organising Committee of the Olympic and Paralympic Games (In Liquidation) v Sinfield.  The medical evidence in question went to the heart of the claim, and therefore, the Claimant’s alleged dishonesty was not a peripheral matter.

Judgment

The claim was dismissed by Master Cook. He considered whether we had proved the Claimant had been dishonest in the presentation of her claim in line with Ivey v Genting Casinos. The judgment was particularly damning of the Claimant’s conduct, highlighting that she “has been both inconsistent and knowingly misleading in her accounts to the experts and to the court. She has demonstrated a willingness to manipulate the facts to suit her arguments.

There was a continued lack of explanation of how a claim, which had been initially valued at less than £10,000 in December 2014, had developed to such a significant claim, and in those circumstances the Master concluded that “there is simply no room to suggest that unconscious exaggeration may be at work”.

In considering whether the finding of fundamental dishonesty would cause substantial injustice as required by section 57, it was acknowledged that the Claimant’s financial difficulties may have had an impact on her conduct. However, it was held that “the Claimant has only herself to blame for this situation”, and that "the Defendant has been put to great trouble and expense to rebut the loss of earnings claim and the Claimant’s exaggerated assertions of disability."

The Claimant was ordered to pay our costs subject to assessment, if not agreed.  Pursuant to section 57 of the CJCA, the amount of damages that the Claimant would have been awarded but for dismissal of the claim was valued at £2,587.50.  This sum will be deducted from the costs payable by the Claimant.

End

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