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Inconsistencies lead to claimants throwing in the towel

Khan, Aziz and Rizwan v Benfield
Guildford County Court – 16 & 17 June 2016
DJ Trigg

Three family members, who had brought claims for personal injury, discontinued their claims on the second day of a two day trial and agreed to pay the defendant’s costs, even though their claims were brought under the QOCS regime. The defendant had pleaded fraud in the defence and challenged the claimants as to the veracity of the accident circumstances, on the basis that the accident had been caused on purpose, with the assistance of a decoy vehicle.

DWF Senior Solicitor, Reshma Modasia, looks at how the claimants’ claims came to unravel in front of their eyes, after the court heard that the claimants and other members of their families had pursued numerous claims. It emerged that the credit hire company that had supplied a hire vehicle to the first claimant was owned by the cousin of the second and third claimants. The defendant was awarded costs of over £21,000.

Background

DWF were instructed on behalf of the defendant by his insurers, KGM to defend the claims from the husband, wife and the husband’s brother in law, who all alleged they sustained personal injuries following a road traffic accident with the defendant in April 2013. The claimants alleged they were proceeding along the A22 when they slowed down due a vehicle in front making a left turn, when the defendant collided into the rear of their vehicle.

All of the claimants served medical evidence in support of their claims and they all claimed to have made a full recovery 12 months post accident. The first claimant also claimed for special damages in the total sum of c.£4,000, including claims for credit hire charges storage/recovery charges and physiotherapy.

The defendant’s account was that he was travelling at about 40mph behind the claimants’ vehicle, when that vehicle came to a complete halt, although rather peculiarly the vehicle did not display any brake lights. The defendant skidded into the rear of the vehicle and he immediately noticed another vehicle parked on the grass verge, just before the junction on the left. He witnessed the front seat passenger in the vehicle carrying the claimants gesticulating to the driver of the parked vehicle so as to “move off”.

The claims were all repudiated and proceedings were issued on 20 November 2014. A defence was filed putting the claimants to proof as to their claims as well as raising concerns as to the veracity of the accident circumstances.

The defendant made an application to amend the defence to plead fraud in view of the wealth of concerns surrounding not only the manner in which the accident occurred but also to highlight to the court, a number of inconsistencies between the claim notification forms, particulars of claim and the witness evidence. The claimants consented to the defendant’s application.

Three weeks before trial the claimants sought to serve certificates of translation in respect of their pleadings and witness statements and the second and third claimants indicated that they would rely upon a translator.

The trial

The trial was heard by District Judge Trigg, sitting in the Guildford County Court, on 16 and 17 June 2016. 

The first claimant was cross examined on day one and part way through the trial he indicated that he too required an interpreter, despite telling the court at the start of his evidence that he did not require one. The court allowed his pleadings to be interpreted in view of the seriousness of the allegation being made.

The first claimant was cross examined as to his injuries and, although he had made a claim for physiotherapy charges, it transpired that he had not attended upon a physiotherapist for treatment.

The first claimant was unable to explain a number of anomalies surrounding the credit hire agreement including rather basic facts as to where the hire agreement was signed and when exactly he received the credit hire vehicle. It also appeared as if the hire period started before the accident had taken place. The hire company that had hired a replacement vehicle to the first claimant was owned by a cousin of the second and third claimants. The hire company was also in liquidation and was dormant at the time of the accident, and so should not have been trading.

The second claimant was cross examined as to a subsequent accident he had been involved in, some three months following the index incident, where the same decoy vehicle had been used and that claim had been repudiated. The second claimant denied all knowledge of the subsequent accident, even though there was reference to the second accident in the second claimant’s GP records. When challenged about the changing nature of his signature over the course of the litigation, the second claimant conceded that his signatures had changed between signing the particulars of claim and signing his witness statement.

During the latter part of the second day of trial and before the defendant had gone into the witness box, each of the three claimants offered to discontinue their claims with payment of the defendant’s legal costs. They also agreed to the defendant’s oral application to dis-apply QOCS so that the order for costs may be enforced without the permission of the court pursuant to CPR r.44.15. The judge ordered the claimants to pay the defendant’s costs in the sum of £21,915.

Comment

These individuals were either experienced claimants and had brought claims before, or were connected to others who had brought claims.

When faced with the obvious discrepancies in their case, the claimants were left with no choice but to discontinue their claims and agree to meet the defendant’s costs, or they would have faced the prospect of the court dismissing their claims and making a finding of fraud or fundamental dishonesty against them.

It emerged that the first claimant had purchased the vehicle he was driving at the time of the accident, only 15 days before the accident had taken place. It was also apparent that the route taken by the first claimant on the day of the accident was not the most obvious and direct route that could have been taken to get the claimants to their destination.

Enquiries carried out in respect of the second accident involving the second claimant, led to the defendant obtaining a witness statement from the other driver involved in that collision, who alleged that he suspected that he was the victim of a scam. The defendant was allowed to use that witness statement in cross examination, even though the witness was not in court.

The defendant thought that the second claimant did not look like any of the occupants of the vehicle he had struck and the suspicion was that the second claimant was not present at the time that the collision had taken place.

Had the claimants been successful at trial, then the defendant would have stood to pay out c.£68,000 in damages and costs.

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Contact

For further information, please contact Reshma Modasia, Senior Solicitor on 01772 554 178 or at Reshma.Modasia@dwf.law

By Reshma Modasia

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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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