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Fundamental dishonesty found in late notified claim brought 13 months after accident

Al Jafari v Sarwat
Birmingham County Court
16 October 2015

A late notified, farmed personal injury claim brought under the Qualified One-Way Costs Shifting regime was found to be fundamentally dishonest and was dismissed after the Judge concluded that he could not accept anything that the Claimant had said. Mohamed Al Jafari brought the claim “in a deliberate attempt to deceive”. Although his wife brought a claim 10 days post accident, Al Jafari didn’t intimate his claim until 12 months later.

DWF late notified claims specialist and Director, Jewels Chamberlain, who acted for the Defendant upon the instructions of Eldon Insurance Services, looks at the facts in the case and what led the Judge to make a finding of fundamental dishonesty, despite the medical evidence supporting the claim.

Facts

The Claimant was a front seat passenger, travelling in a Vauxhall Corsa vehicle driven by his wife, when they were involved in a collision with a Peugeot driven by the Defendant. Liability was not in dispute. The Claimant alleged that he sustained injuries to his neck and back and also made a claim for care and assistance at nearly £400, together with a claim for the costs of his treatment in the sum of £470.

The Claimant relied upon a report from a medico-legal expert, who examined the Claimant some 13 months post accident. The expert’s opinion was that the Claimant had suffered a neck injury, with symptoms lasting about a month and an injury to his lower back which was still symptomatic at the time of examination. The expert was of the view that with eight sessions of physiotherapy, the Claimant would fully recover within 18 months of the accident. The Claimant suggested that his injury was still quite painful at the time of examination.

Whilst the Claimant reported his alleged injuries to his GP eight days after attending upon his medico legal expert and over a year after the accident had taken place, he did not mention that he had been injured in an accident, when he attended upon his GP surgery three months after the accident and at a time, when according to him, he was in considerable pain. The Claimant’s evidence was that he had not thought to mention the accident to his GP at that stage or had panicked or had forgotten.

Whilst the Claimant’s wife submitted her claim 10 days after the accident, the Claimant told the court that he did not hear about his wife’s claim until two months after the accident and that he did not know how much money his wife had received in compensation. He also suggested that he did know that he could bring a claim of his own.

Findings

Hearing the trial on 16 October 2015 in Birmingham County Court, Recorder Burns found that:-

  • He could not believe a word that the Claimant was telling him

  • Had the claimant still been suffering from symptoms when he attended upon his GP three months post accident, he would have told the GP about it

    • It was impossible to believe that he panicked or forgot to mention it

    • On his evidence he was in considerable pain at this stage

  • The claim for care was unproven or exaggerated

  • The expert’s conclusion of a causative back injury was rejected and his report was “rather unsatisfactory”

  • It was hard to believe that the Claimant did not hear about his wife’s claim until two months after the accident

Following dismissal of the claim and short submissions about whether the claim was fundamentally dishonesty, the court found that “..there was a deliberate attempt to deceive” and that the “..Claimant was perfectly aware as to what he was doing”. The Judge confirmed that there had been fundamental dishonesty for the purpose of CPR r.44.16, QOCS protection was lost and the Claimant was ordered to pay the Defendant’s costs in the sum of nearly £4,500.

Comment

On paper, this appeared to be a straightforward whiplash claim, where liability was not in dispute. The medical evidence supported the Claimant’s claim that he had ongoing symptoms and recommended that the Claimant undergo treatment.

However, through the use of a strategy for identifying and dealing with late notified, farmed claims it was possible to select the claim as one to investigate further and the decision to defend the claim was borne out by the Judge’s finding of fundamental dishonesty.

Substantial savings can be made by adopting such a strategy and can act as a deterrent against further late claims being brought. Slater + Gordon recently announced at their AGM last week that they would no longer take on claims that were a year old because of the problems that they face in bringing those claims

A good strategy will often see claimants deciding to drop their claims before litigation, but where proceedings are commenced and where a defendant is successful, claimants are at risk of losing their QOCS protection and being made to pay the defendant’s costs.

Contact

For further information about this case or strategies for dealing with late notified claims, please contact Jewels Chamberlain, Director on 01772 556677 or jewels.chamberlain@dwf.co.uk

Jewels will be discussing strategies for dealing with late notified claims at our fraud seminar in London on 3 December.

Find out more and register to attend >

By Jewels Chamberlain

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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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