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Fraudulent claimants count the cost with exemplary damages award

Akhtar & Khan v Ball
Walsall County Court
10.7.15
Before HHJ Gregory

Two Claimants found to be fundamentally dishonest were ordered to pay exemplary damages of £3,000 as well as indemnity costs after being found to be ‘complicit in a criminal conspiracy to defraud’ Royal & Sun Alliance Insurance plc (RSA). Husband and wife, Parveen Akhtar and Mohammed Khan of Birmingham, had sought damages for personal injury following a road traffic accident on 17th July 2013 when Rebecca Ball, a teacher insured by RSA collided with the rear of a vehicle being driven by Mrs Akhtar. It was claimed that Khan was a front seat passenger in the vehicle at the time of the accident.

This case is a rare example of a court, not only dismissing a claim on grounds of fundamental dishonesty and suspending QOCS, but also awarding the defendant exemplary damages.  DWF Solicitor Craig Budworth looks at the facts in the case and what led the Judge to take the action that he did.

Background

DWF LLP were instructed to act on behalf of Miss Ball by RSA and defend the claims brought by Akhtar and Khan on the basis that they were fundamentally dishonest in that:

  • Akhtar had deliberately applied her brakes to induce Miss Ball to  collide with the rear of her vehicle, with the aim of recovering compensation;

  • Khan was not present in the vehicle at the time of the accident; and

  • the force of the impact was insufficient in any event to cause injury to any occupant travelling in Akhtar’s vehicle.

The Defence also included a Counterclaim in the tort of deceit for exemplary damages. In the House of Lords judgment in Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, Lord Nicholls took the view that the crucial point in deciding whether an award of exemplary damages is appropriate, is the nature of the fraudster's behaviour itself, rather than the nature of the cause of action sued upon and Lord Nicholls said that:

…the underlying rationale lies in the sense of outrage which a (fraudster’s) conduct sometimes evokes, a sense which is not always assuaged fully be a compensatory award of damages..."

Facts

Sitting at Walsall County Court on 10 July 2015, HHJ Gregory heard Miss Ball describe a very minor impact between the vehicles with photographic evidence obtained at the scene of the accident showing no visible damage to either vehicle. To the contrary, both Akhtar and Khan gave evidence that the impact was substantial, causing a ‘shunt’ to their vehicle.

After the accident Miss Ball told the court that she exchanged her details whilst at the front driver’s window of the Claimant’s car and had a clear view into the interior of the car.  She said she could not see any other occupants within Akhtar’s vehicle. The Claimants countered that by saying that Khan was just 5’6” and that, even though Khan claimed to be sat in the front passenger seat, this is why Miss Ball had not seen him, despite the fact that she also followed his vehicle for several miles following the collision.

The Claimants relied on the evidence of two medical experts, Dr Ratra and Mr Korab-Karpinski. The Claimants’ credibility was questioned on the basis that they had failed to mention to the medical experts when asked any of the other accidents in which they had been involved, Akhtar claiming that they had simply forgotten about the two accidents he had been in (it had been discovered that Khan had been in three previous accidents). Both Akhtar and Khan had also provided differing recovery periods to the respective experts and Khan’s assertion that he had two weeks off work following the accident was contrary to a letter obtained by the Defendant from his employer, confirming that he had no time off work at the time of the accident. 

Findings

In his judgment HHJ Gregory considered that both Claimants had been willing to lie about their accident history; this in his experience was common in fraud cases. The Judge said that he did not accept that Akhtar was injured, due to the fact that she failed to seek medical attention and on the basis that she had provided inconsistent accounts of both the accident and her alleged injuries.

The Judge also felt that Khan had provided his evidence in a monotone manner and was a completely unreliable historian, particularly in light of his failure to mention his pre-accident history to the medical expert and being untruthful about his time off work.

By sharp contrast, HHJ Gregory found Miss Ball to be a clear, compelling and transparent witness. Accordingly, he found as a fact that Miss Ball had given an honest account.

HHJ Gregory went on to find that Khan had not been present in the car. The Judge was satisfied that Khan had lied about his presence in the vehicle to obtain compensation and that he had been supported by his wife who had also lied. He stated that even if he felt that there had been an accident which had caused some injury, he would consider it appropriate to adopt the approach approved by the Supreme Court in Summers as permitting a court to dismiss or strike out an otherwise bona fide claim, as a consequence of pursuing a false claim. The Judge went on to say that he did not need to adopt this stance as he found that there was no injury and as a result both claims were dismissed.

With respect to the claim for exemplary damages HHJ Gregory stated that he could not ‘see for the life of me why these claims do not satisfy the tort of deceit.’ He found that the Claimants had:

  • made express and implied representations about being injured in the accident;

  • known those representations to be dishonest; and

  • that the purpose for making those representations, was to make a gain for themselves financially.

HHJ Gregory went on to say that this was plainly a case for exemplary damages as fraud had been exposed and the fraudsters had failed in their aims. Accordingly, he made an award in favour of the Defendant in the sum of £3,000 for exemplary damages to be paid by the Claimants within 21 days.

As this case also fell within the Qualified One Way Costs Shifting regime, HHJ Gregory found that the case was fundamentally dishonest for the purposes of CPR r.44.16 and that the Defendant could enforce the costs awarded to them on an indemnity basis.

Comment

This case highlights the worth of pleading a counterclaim for exemplary damages in those cases where a finding of fundamental dishonesty is a strong possibility and our experience here demonstrates that judges are prepared to make such awards, to punish claimants who have been found to have made a fraudulent claim.

It should also be borne in mind here that, whilst the claims here were of relatively low value, the Claimants’ conduct was such that it satisfied the test set out in the House of Lords in Kuddus, and insurers should not be put off pursuing a claim for exemplary damages in low value claims.

Contact

For further information please contact Craig Budworth, Solicitor on +44 (0)151 907 3198.

By Craig Budworth

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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