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Phantom passengers ordered to pay costs following a finding that their claims were fundamentally dishonest

Visnevska & Others v Visnevskis (1) & Octagon Insurance Company Ltd (2)
County Court at Kingston Upon Hull
03/06/2016

A mother who claimed that her child was in a car with her at the time of a road traffic accident, had falsely claimed for financial gain, as neither she, nor the child were in the vehicle at the time of the collision. The child’s father, the First Defendant had confirmed that both the child and his wife were in his vehicle at the time of the collision, along with his brother. 

Even though the Claimants discontinued their claims, the Second Defendant successfully applied for a finding that the claims were fundamentally dishonest and obtained an order that they be free to enforce their costs against the First and Second Claimants. DWF Solicitor, Lucy Bevan, who acted for Octagon Insurance Company Ltd, looks at the background to the case and the steps taken to ensure that Octagon could recover their costs, even though the claims were brought under the Qualified One-Way Costs Shifting regime. 

Background to the claims

All three claims arose out of a road traffic accident which occurred on 9th February 2015, when the First Defendant (who Octagon insured) negligently drove his Mazda into the rear of a stationary third party vehicle. Claims were intimated by the First Defendant’s wife, brother and child who were all said to be passengers in the Mazda at the time of the collision and who were all said to have suffered personal injury.

Proceedings were issued by the three alleged passengers, who claimed that on the date of accident they visited the First Defendant at his place of work, having travelled some 25 minutes on foot to get there. After the First Defendant had finished work, the Claimants alleged that they all left in the First Defendant’s car and as they travelled away the First Defendant’s collided with the rear of the third party vehicle. Their claims were supported by the First Defendant, who signed a statement of truth stating that each Claimant was in his vehicle at the time of the incident.

In response to the claims, the third party driver gave a very different account. His evidence was that the First Defendant was the sole occupant of the Mazda and further, that the First Defendant spoke little English and called a person he stated was his wife from the accident scene, so that she could translate. At the scene He could clearly see into the Mazda and there was nobody in the vehicle and nobody got out. 

It was agreed that the third party driver would follow the First Defendant to his home address, so as to speak with his wife and exchange details.  The third party driver had a clear view into the rear of the Mazda on the journey and when he parked up behind the Mazda, he clearly saw only the First Defendant exit the vehicle; the First Defendant’s wife, the First Claimant, were at the First Defendant’s address.

The First Defendant alleged that he had a camera fixed to his vehicle which may have evidenced occupancy yet he was unable to produce the same.

The insurer’s response

On the basis of the evidence from the third party driver, that the Claimants were not in the First Defendant’s vehicle, and in light of various inconsistencies within their accounts, the Second Defendant was joined to the proceedings and filed a defence pleading that the claims were fundamentally dishonest. Substantial Part 18 questions were raised of the two adult Claimants, as to their precise journey leading up to the collision and their interactions with the third party both at the accident scene and at First Defendant’s home address.

Only 17 days after serving the Defence pleading fraud, all three Claimants filed and served Notices of Discontinuance. No reasons were given for the early discontinuance. Qualified One Way Cost Shifting applied to the claims, meaning that the Second Defendant was unable to pursue recovery of their costs, unless the court ordered otherwise. 

DWF filed an application on behalf of the Second Defendant, requesting an order that QOCS be lifted on the basis that the claims were fundamentally dishonest, pursuant to CPR r.44.16.  The application came before District Judge Whybrow on 11th February 2016. In response to the application, the two adult Claimants both served statements opposing the application, stating that they had discontinued on the basis that they did not believe they could overcome the allegations of fraud, notwithstanding they did not accept that the claims were fraudulent.  The First Defendant’s wife alleged that text messages, exchanged between her and the third party driver, seeking to agree to settle the cost of repairing the damage to his vehicle, without going through insurers, were evidence that she had been at the accident scene. The Claimants also served a statement from a child minder, as to the minor’s behaviour post-accident and from a friend who was a mechanic who looked at the third party’s vehicle post-accident.

DJ Whybrow found that there was sufficient merit to the application and ordered full directions ahead of a final hearing. The Claimants’ disclosure was to include any relevant video footage obtained from the First Defendants dash-camera and all relevant mobile and land line telephone records, given that the third party driver’s evidence was that the First Defendant had called his wife from a mobile at the accident scene.

The Claimants failed to fully comply with disclosure; their statement having been signed by the legal representatives and they served only one email regarding the First Defendant’s wife’s telephone records. An adverse inference was sought by the Claimants’ failure to properly comply with the order for disclosure.

No further witness evidence was served by the Claimants and prior to the final application hearing their representatives were removed from the Court record owing to lack of funding.

Judgment

The matter was listed for a final hearing of the issues on 3rd June 2016 and was heard by District Judge Thomas. Giving judgment, DJ Thomas found:

  • The third party driver’s evidence was straightforward with no discrepancies. 

  • He had no interest whatsoever in the outcome of the application and his evidence was logical and consistent.

  • The two adult Claimants were not as convincing – their accounts were inconsistent regarding timings, the weather and the road conditions.

  • It was not unusual for parties to seek to agree settlement without going through insurers and it was logical that the third party would correspond with the First Defendant’s wife who could speak English.

  • The lack of supporting phone records and video footage from the Claimants was a factor in the Judge arriving at the conclusion that he did.

  • If the Claimants had been in the car, then after the drive to the First Defendant’s address someone would have had to unfasten the minor out of the child seat in the rear before being taken into the house; there was no way that the third party driver could have failed to see that.

  • There was no doubt that the Claimants were not in the First Defendant’s vehicle and their claims were fundamentally dishonest.

In light of his findings, DJ Thomas found that it was appropriate to make an order against the two adult Claimants, suspending QOCS, so that the Second Defendant could enforce their costs against them. The Claimants were also liable for the Second Defendant’s costs of the application.

Comment

When the QOCS rules were introduced back in April 2013, there were concerns that they would provide fertile conditions for speculative claims to thrive, as proceedings could be brought under the protection of the QOCS rules, leaving insurers to fit the bill, with no right of recourse. One specific worry was that proceedings would be issued, only for claimants to run for the hills as soon as a defence is filed.

This case and other successful results that DWF have secured, demonstrates that service of a Notice of Discontinuance need not be a bar to the Defendant recovering their costs, as long as the Defendant is able to put together a demonstrable case that the claim is fundamentally dishonest, for the purpose of CPR r.44.16.

We are increasingly seeing these types of applications being made by Defendants, where Claimants seek to avoid paying the costs of advancing their speculative or fraudulent claims, under the auspices of the QOCS regime and Judges are prepared to make orders against those Claimants, where they are satisfied that the claim is fundamentally dishonest.

DWF are now advising Octagon Insurance Company Ltd of the next steps with regards to recovery including whether to pursue committal proceedings against the adult Claimants for contempt.

Contact

For further information please contact Lucy Bevan, Solicitor, on 0161 603 5115 or at lucy.bevan@dwf.law

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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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