Legal Watch:Personal Injury27th March 2015Issue: 057

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

There is a limited number of seats still available for this event, so to avoid disappointment book your place now.

In this issue:

• Fraud/committal

• Jurisdiction/Rome II

• Watch this space

Fraud/committalRoyal & Sun Alliance Plc v Fahad [Lawtel 23/03/2015] is the latest example of a court punishing a claimant for bringing a fraudulent personal injury claim. It illustrates the burden of proof that an applicant must satisfy to succeed with an application under CPR 32.14 and CPR 81 and also highlights the value of Part 18 requests for further information.

The respondent/claimant had brought a claim in damages against the applicant arising out of an alleged road trafficaccident. The trial judge had found that the accident was entirely contrived and that the respondent had known the other driver who was involved, despite his assertions to the contrary. The applicant was the other driver’s insurer.

The trial judge found the respondent’s evidence inconsistent and untruthful, and the applicant was granted permission to bring committal proceedings on the basis that the respondent had made false statements. The relevant statements were the allegation in the respondent’s particulars of claim that the accident had been caused by the driver’s negligence; his response to the applicant’s Part 18 request in which he stated that he did not know the driver prior to the accident; and his statement in his witness statement that he did not know the driver at the time of the accident and only became Facebook friendswithheraftertheevent.Thedriver’sflatmatehadgivenevidence during the trial that the respondent and the driver had been in a long-term relationship.

The applicant submitted that the respondent (1) had made the falsestatementsandverified(orcausedthemtobeverified)with a statement of truth; (2) knew at the time that he made the statements that they were false; (3) acted with the intention of interfering with the due administration of justice; and (4) if the false statement had been persisted in, it was likely that it would have interfered with the course of justice. The applicant further submitted that, in relation to (3), if the court found that the respondent knowingly made false and dishonest

02

statements of the kind alleged, there was an irresistible inference that he acted with the intention of interfering with the due administration of justice. The respondent submitted thathehadcommunicationdifficultiesdue toEnglishnotbeinghisfirstlanguageandthathehadgotconfusedwithhis tenses when he said that he had not known the driver at the time of the accident.

‘The central issue was the existence or absence of a relationship between the respondent and the driver.’Allowing the application, the deputy High Court judge held that the issues to be determined before the instant court were essentially the same as those before the trial judge. The central issue was the existence or absence of a relationship between the respondent and the driver. It was for the applicant to prove beyond reasonable doubt that the respondent had made the false statements knowing that they were false. The instant court had been impressed by theflatmate’sevidenceand therewasnogood reason todisbelieve it. The court accepted it in full.

The court could only deduce the respondent’s account of events from the papers before it, as he had not given evidence and neither had any of the passengers involved in the alleged accident. His right to silence was not absolute and could be taken into account. The court approached his evidence with a great deal of caution. He had stated that he did not know the driver at the time of the accident. After the applicant served a statement from its solicitors showing that the respondent and the driver were friends on Facebook, he had made a statement claiming that they had only become friends on Facebook after the accident.

The respondent had been resident in the UK since 2011 andhadattendedanintensiveEnglishlanguagecourse.Hisdifficultieswith theEnglish languagehadbeenoverstated

and his argument that he had muddled his tenses in his statementwasnotaccepted.Thecourtwassatisfiedthatthe respondent was well acquainted with the driver at the timeoftheaccidentandacceptedtheflatmate’sevidencethat they had been in a long-term and serious romantic relationship for some time. The court also accepted the flatmate’sevidencethatthedriverhadtoldherthatsheandthe respondent had nearly been caught out by an insurance company because they were friends on Facebook. There was a good deal of evidence to show that the respondent had been dishonest. The only credible explanation for the changes in his evidence was that he had been untruthful. The court accepted that the motivation for the respondent to conceal his relationship with the driver was to deceive the applicant into believing that an accident had occurred which had not. The accident was not real and had been staged. It could not reasonably be argued that the respondent had an honest belief in his statements. He had knowingly and deliberately set out to defraud the applicant in a false claim for damages. In doing that he had sought to interfere with the administration of justice and was in contempt of court, Airbus considered. The respondent was sentenced to 12 months’ imprisonment.

03

Jurisdiction/Rome IIThe application of the Rome II regulations to a fatal accident claim was considered in Bianco (deceased) v Bennett (2015) EWHC 626 (QB).

The claimant (the deceased’s widow) and her family were Italian and lived in Italy. The deceased had been hit by a car driven by the defendant in the UK. He died from his injuries. The defendant had admitted that he was two-thirds to blame.

The claimant claimed damages under the Fatal Accidents Act 1976 and pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. In her schedule of loss, she made “subrogated claims” under the 1976 Act relating to sums paid and to be paid to the family by the Italian Workers Compensation Authority (UNAIL) and by her husband’s employer. It stated that, under the terms of an insurance policy with UNAIL, the claimant was contractually obliged to seek a subrogated claim where a third party was at fault. The preliminary issue was whether such claims were recoverable.

The defendant submitted that there was no head of loss under the 1976 Act which was permitted the claimant to include the subrogated claims and that payments from the husband’s insurer and employer were disregarded in the assessment of her claim as irrelevant. He argued that any claim based on Italian law would have to be pleaded and proved by expert evidence. The claimant argued that the sums claimed were recoverable pursuant to Article 85 Regulation 883/2004.

‘…the applicable law was that of the country in which the damage occurred.’

Rejecting the claim, the High Court judge held that under English law, thecontentof foreign lawwasaquestionoffact, and if foreign law was to be relied on it had to be pleaded and proved as a fact by expert evidence. In the absence of satisfactory evidence of foreign law, the court would apply English law. The schedule of loss made noreference to Article 85. However, the 2004 Regulation, as a directly enforceable instrument of EU law, was part ofEnglish lawandapartydidnot have topleadmattersofdomestic law.Thepositionwasdifferent in relation to theprovisions of Italian law, which was the foundation of the subrogated claims. The defendant was entitled to object to the claimant’s reliance on the Italian law which had since beenidentifiedasfoundinghercaseunderArticle 85. The Italian law case had not been pleaded and there was no admissible evidence to support it. The subrogated claims as pleaded could not succeed. Regulation 864/2007 (Rome II) applied to claims in respect of accidents and the applicable law was that of the country in which the damage occurred. The claim was governed by English law and the onlyavailable basis for a claim in respect of her husband’s death was under the 1976 Act and the 1934 Act. The subrogated claims were not causes of action possessed by the husband before his death so the 1934 Act was not applicable and they could not be brought within the terms of the 1976 Act. Theclaimanthadthebenefitof S4 of the 1976 Act which providedthatallbenefitscomingtoadependantasaresultof death were to be left out of account.

Article 85(1)(a) was a choice of law provision by which the home law of the institution providing benefits in respectof an injury would govern whether the institution was subrogatedtorightsenjoyedbythebeneficiaryagainstthewrongdoer and, if so, the extent of the subrogation. That provision did not require the court of the foreign member state to apply the law of the institution’s home jurisdiction to the claim against the defendant. There was no authority for the proposition that the law of the institution’s home country applied to determine the existence and extent of the rights to which the institution was subrogated.

04

Watch this spaceThe Social Action, Responsibility and Heroism Act 2015 will come into force on 13 April and will apply to claims that a person was negligent or in breach of statutory duty where the act or omission giving rise to the claim occurs on or after that date. The Act has been heavily criticised for seemingly adding nothing to the existing law but merely reemphasises that in considering a claim in negligence, the court must take account of the context in which the alleged negligence occurred.

On the same date S57 Criminal Justice and Courts Act 2015 comes into force. It states that if in a personal injury claim ‘the court finds that the claimant is entitled to damages in respect of the claim, but….on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim...the court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

The duty…. includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.’

Theeffectofthisisthatifpartofaclaimistaintedbyfraudthe court is required to dismiss the whole claim, including any ‘legitimate’ element, unless theclaimantwould suffer‘substantial injustice’. It also modifies substantially theSupreme Court ruling in Summers v Fairclough Homes Ltd (2012). It had been held that the court had power under the civil procedure rules and under its inherent jurisdiction to strike out a statement of case at any stage of the proceedings, even when it had already been determined that the claimant was, in principle, entitled to damages in an

ascertained sum. However, that power was to be exercised only where it was just and proportionate to do so, and that was likely to be only in very exceptional circumstances. The power had not been exercisable in that case.

The new provisions do not apply to proceedings started by the issue of a claim form before 13 April but are otherwise retrospective.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.com

Contact UsFor more information please contact:

Geoff Owen, Learning & Development Consultant

T: 01908 298216E:gro@greenwoods-solicitors.com

PublicationsIf you would like to receive any of the below, please email indicating which you would like to receive.

Weekly:

• Legal Watch: Personal Injury

Monthly:

• Legal Watch: Property Risks & Coverage

Quarterly:

• Legal Watch: Counter Fraud

• Legal Watch: Health & Safety

• Legal Watch: Professional Indemnity

• Legal Watch: Disease

To unsubscribe from this newsletter please email:

crm@greenwoods-solicitors.com