fraud focus September 2008

Transcription

1 fraud focus September 2008 Contents Editorial... 1 Illegality in road traffic accidents... 2 Are you treating your customers fairly?... 5 Intelligence and its place within fraud investigation... 7 Article 75: know your status... 8 Revision of CPR rules... 9 Fraud focus: recent successes and developments Editorial Fraud represents more than a financial challenge, it also represents a reputational risk to business. This view was expressed by the FSA in their report of February 2006 entitled Firms High level Management of Fraud Risk. Financially regulated firms are obliged to take reasonable care to establish and maintain effective systems and controls for countering the risk that the firm might be used to further financial crime. The ABI estimated this year that fraud is costing the UK economy in the region of 650 million per annum. Unsurprisingly, the judiciary are starting to sit up and take notice of the problem of fraud and are being persuaded to deal with fraudulent claims through the court system. In this first edition of Fraud focus, solicitors from our specialist claims investigation teams provide a round up of some of the issues that are currently before the courts, look at the emerging trends and patterns and provide some general pointers to assist clients with the war on fraud. If there is anything you wish to discuss arising from the enclosed, or about BLM s fraud services, or for general feedback on the inaugural edition, please contact: Sarah Hill Partner, BLM Birmingham DD sarah.hill@blm-law.com Raymond Southern Partner, BLM Manchester DD raymond.southern@blm-law.com Fraud focus 1

2 Illegality in road traffic accidents Background The claimant parked his car in Edgware, London where it was struck by a car being driven by the defendant s employee. Despite the fact that the claimant had been paid the pre-accident value of his vehicle, he nevertheless sought to recover credit hire charges in the sum of 34, as well as storage and recovery charges in the sum of The claim was defended on the basis that the doctrine of ex turpi causa applied (as the claimant was acting illegally) as he and/or his vehicle were uninsured at the time of the accident contrary to section 143 of the Road Traffic Act It was accepted by the claimant that he was uninsured at the time of the accident and that he was subsequently convicted of failing to have insurance for his car. As a result of his conviction he received a 60 fine and six penalty points. However, the claimant denied being uninsured from 1 April 2005 to 29 March 2006 and also denied knowingly driving his car without insurance during this period. A Motor Insurance Database (MID) investigation revealed that the claimant did not hold valid insurance for his car as far back as December The claimant produced no evidence to the contrary despite specific requests to support his assertion that he held insurance for his car during the 15 months prior to the accident. It was the defendant s case that not only did the claimant drive and park his car without insurance at the location where the accident occurred, but that he had also been knowingly using his vehicle over a 12 month period without insurance. It was established that on 1 April 2005, the claimant s car was subjected to an MOT examination which recorded the vehicle s mileage as 73,920. However, when the vehicle was inspected by an engineer appointed on behalf of the claimant shortly after the accident, the recorded the mileage was 83,077 which indicated that the car had been driven some 9,000 miles. As the claimant had openly accepted by way of his Part 18 responses that he was the only person who had access and permission to drive the vehicle, it followed that he was the only person who could have driven the vehicle during this time. The claim was defended on the following basis: a b c d e The doctrine of ex turpi causa applied by reason of the fact that the claimant illegally and knowingly used his vehicle without insurance contrary to section 143 of the Road Traffic Act The claimant drove the car 9,000 miles in a 12 month period immediately prior to the accident. The claimant was not entitled to recover credit hire charges because the loss of the ability to illegally drive an uninsured vehicle was no loss at all. The hire charges were not recoverable because granting the claimant capacity to drive an insured motorcar was putting him in a better position than had the accident not occurred. It was submitted that the claimant had simply lost the value of an uninsured car which he could not drive. The principle of the law of tort is to place the parties into a position which they would have been but for the accident. But for the accident the claimant had an uninsured car which he was unable to use and therefore as he had been paid the pre-accident value of his motor vehicle he had been put back into the position he would have been in. Fraud focus 2

3 f g The claimant had not been honest and was evasive when giving evidence and throughout the course of proceedings and therefore the case should have been struck out. It was unlikely that the claimant would ever pay the hire charges or that the hire company had any intention of pursuing the claimant for the hire charges in the event he failed to recover from the defendant. Doctrine of ex turpi causa The maxim ex turpi causa non oritur actio was formulated by Lord Mansfield in Holman v Johnson [1775] 1 Cowp 341 at 343: No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff s (sic) own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. The maxim ex turpi causa non oritur damnum applies were the court does not permit the claimant to receive his full damages on the grounds that public policy will intervene; see the leading judgment in the case of Hewison v Meridian Shipping [2002] EWCA Civ 1881 per Clarke LJ at 28. It was submitted that this principle applied to the hire charges as well as the storage and recovery charges as in order to recover the same, the claimant would effectively be relying on his own intended future illegal act of driving his car without insurance. It is well established that the categories of conduct which may qualify as satisfying the level of turpitude necessary to bring into play the ex turpi doctrine are not limited to the purely criminal. As Lloyd LJ observed in Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB283, 291: The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff (sic) who has been guilty of illegal (or immoral) conduct of which the courts should take notice. In this case, the conduct complained of was undoubtedly criminal (and not simply immoral) and was therefore capable of giving rise to the ex turpi defence. It was an offence contrary to section 143 of the Road Traffic Act 1988 to have a vehicle on a public highway without insurance. Throughout the course of submissions, the court s attention was referred to the scale of the problem which was created by the wholesale failure of a significant minority of motorists to comply with the requirement for compulsory insurance. In particular, paragraph 7.1 of the Explanatory Memorandum to the Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicle) Regulations 2005 No (See the Department of Transport paper Uninsured Driving in the UK at According to an insurance industry estimate there are around 1.2 million persons one in 20 motorists driving regularly whilst uninsured. Uninsured drivers impose a financial burden on honest motorists. The damage they inflict in road traffic accidents results in claims against the industry-maintained Motor Insurers Bureau or against the policies of insured drivers. In addition, uninsured driving imposes other costs on society. These drivers are more likely to be involved in road traffic accidents, to be non-compliant with other road traffic requirements and obligations and potentially to be involved in other criminal activity. The involvement of uninsured drivers in fatal road traffic accidents has been the subject of considerable public and media pressure for action. Fraud focus 3

4 Further reference was made to section 152 of the Serious Organised Crime and Police Act 2005 which give the police power to justify the seizure and disposal of uninsured vehicles as well as various statistical data indicating that: the premiums of those who pay for their insurance are, on average, 30 higher by way of subsidy of uninsured drivers the total cost of financing uninsured drivers is in excess of 500 million per annum about 5% of motorists drive whilst uninsured about 250,000 motorists are caught driving without insurance each year. It was averred that as the problem of driving without insurance was a major issue both for the criminal and civil justice system, a unified approach was required since that which was illegal and punishable in the criminal law ought not to be rewarded in the civil law. Application of the doctrine The Court of Appeal held in Cross v Kirkby (QBENF 1999/0526/A2) that: The principle of [ex turpi] applies when the claimant s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct. In R v Shepherd [1981] AC 394, Diplock LJ formulated the rule in this way: All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti-social to justify the courts refusing to enforce that right. (Emphasis added.) In the case, it was submitted that the conscious act of driving a car without insurance and then parking it on the road was inexorably and casually linked to the occurrence of the accident. In Clunis v Camden & Islington Health Authority [1998] QB 978 the court held: The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the plaintiff s (sic) own criminal act and we would therefore allow the appeal on this ground. In this case, the claimant was committing not merely an anti-social act but a criminal act with statistically well documented anti-social consequences. It was argued that the claimant drove and parked his car knowing that in the event of a collision, he was not going to pay, by way of his insurance premiums, for the consequences. It was submitted that there is something inherently wrong with the notion that someone who deliberately sets out to default on the social contract of mutual insurance should then be able to take advantage of insurance put in place at the expense of another. The defendant s case was such that as the claimant was not a man of substantial means, when he chose to deliberately drive his car without insurance he either assumed that anyone who was injured would not be able to recover damages or, alternatively, and no less morally culpably, that the costs of any injuries should be paid by those who did pay their premiums. It was suggested that public subsidy of the guilty by the innocent was wholly unattractive and a last resort. Fraud focus 4

5 It was further submitted that as Parliament, the courts and the Sentencing Guidelines Council had all expressed recent concern over the social evils that are promoted by those who continue to drive without insurance, it was both right and proportionate that those who deliberately chose to drive, or knowingly allow others to drive, without insurance should, upon the normal operation of the ex turpi causa doctrine, thereby forfeit the symmetry of support that the law of compulsory insurance is intended to provide. This observation is likely to be a salutary and sharp reminder to insurance defaulters that it is not only those that they harm who may be affected by their actions, but themselves. It was averred that in all the circumstances, the claimant should be denied compensation for the credit hire charges sustained in the accident as this would be a fair and proportionate result. It was submitted that the court should not countenance awarding damages to legitimise what, in the absence of an accident, would be an illegal act as such a reward would be perverse. The issue was not whether the claimant is barred from recovering all losses but merely part of his losses, the credit hire part. It was contended that the claimant would need to rely on the illegal act of driving whilst uninsured to establish that he suffered any loss otherwise he had only suffered the loss of the damage to his car. As it had been established that the claimant had been using his vehicle without insurance in the year prior to the accident, the court found that the claimant would have intended to continue driving without compulsory insurance throughout the 341 day hire period. Accordingly, the claimant s claim for hire was dismissed as the case fell squarely within the ratio of the Hewison v Meridian Shipping [2002] EWCA Civ 1821: where a claimant has to rely upon his or her own unlawful act in order to establish the whole or part of his or her claim the claim will fail either wholly or in part. Satpal Gidda Solicitor, BLM Birmingham Are you treating your customers fairly? The Treating Customers Fairly initiative (TCF) is the focus of the FSA on placing responsibility upon firms to deliver fair treatment or outcomes to consumers. In July 2006 the FSA set a deadline for all firm to have implemented the TCF in the majority of their business by the end of March Six outcomes were identified by the FSA as being key to the fair treatment of the consumer: i ii iii iv Consumers can be confident that they are dealing with firms where the fair treatment of customers is central to the corporate culture. Products and services marketed and sold in the retail market are designed to meet the needs of identified consumer groups and are targeted accordingly. Consumers are provided with clear information and are kept appropriately informed before, during and after the point of sale. Where consumers receive advice, the advice is suitable and takes account of their circumstances. Fraud focus 5

6 v vi Consumers are provided with products that perform as firms have led them to expect, and the associated service is both of an acceptable standard and as they have been led to expect. Consumers do not face unreasonable post-sale barriers imposed by firms to change product, switch provider, submit a claim or make a complaint. Progress in implementing the TCF has been mixed with major retail groups, according to figures obtained by the FSA and reported in its progress report, being the most successful in meeting the March 2007 deadline and small business being the least successful. However, this is hardly surprising. The management teams of large firms must not rest on their laurels as the FSA requires them to demonstrate how they are treating their customers and whether they are delivering fair outcomes. Many have commented on the use of Management Information being the means by which businesses should capture their progress and most, if not all, insurers will be familiar with this concept. However, it is the demonstration of how TCF is being implemented which may cause problems for most insurers. Focusing on the third outcome of the TCF initiative, BLM s experience has shown that most insurers fall down when they should be keeping the customer informed, particularly in the investigation of suspected fraudulent claims. This is particularly so when indemnity rights have been reserved and occasionally in cases where indemnity has been withdrawn. BLM s experience suggests that there is a gap in communication where a claim is in the process of being validated, in particular, where it is suspected that the policyholder has conspired with the claimant and/or any other person in an attempt to defraud his/her insurer. An insurer should inform the policyholder that indemnity rights are being reserved upon commencement of investigations as to the veracity of a claim or at the earliest possible opportunity. When, and only when, there is substantial evidence obtained to support the withdrawal of indemnity should this be communicated to the policyholder. The concern is that invariably the first point at which the policyholder becomes aware of the withdrawal of indemnity or the reservation of rights in this regard is when they are in receipt of claim papers and contact the insurer or worse when they are in receipt of an application to join their insurer into the proceedings as a second defendant. This leaves the insurer open to a complaint to the FOS made by the policyholder. In the circumstances, unless the insurer is able to evidence that it has complied with outcome three of the TCF it is likely that the FOS will criticise the insurer in this regard. There is a clear conflict between keeping the policyholder informed pursuant to the third TCF initiative and the offence committed in tipping him/her off that the indemnity position is reserved and that further enquiries are being undertaken pursuant to POCA As all complaints to the FOS are dealt with on a case by case basis, it is up to the insurer to provide the evidence to the ombudsman supporting their position and for the ombudsman to decide whether the complaint is within the remit of the FOS and a decision is capable of being made. When solicitors are instructed to act for the insurer and proceedings have been issued it is much easier to succeed in the hearing of an application to join an insurer into the proceedings as a second defendant if there is a letter stating evidence of the fact that the policyholder has been informed of the position in relation to indemnity. Fraud focus 6

7 BLM s advice is that insurers should in all cases inform the policyholder of the position in relation to indemnity at the earliest possible opportunity. Consideration should always be given on a case by case basis to the effect this may have on any investigation as the risks will be greater in some cases and much less so in others. This will have a bearing on content of any letter sent to the policyholder. A copy of the letter informing the policyholder of the indemnity position should always be attached to the insurer s file of papers when sending instructions to solicitors to assist in the successful application to join as second defendant. It is hoped then that insurers who detect, investigate and defend potentially fraudulent claims are as far as possible able to comply with the TCF initiative. Claire Laver Associate, BLM Birmingham Intelligence and its place within fraud investigation Intelligence and its applications are concepts which are often misunderstood, but in reality they can add real value to the identification and subsequent investigation of a problem. Intelligence is an area of business that, from its development in public sector, is finally beginning to get the respect that it deserves in the private sector. There is an undoubted need for the existence of rigid intelligence processes within organisations with an investigative function in order to provide focus and direction to its business. Central to this is the analysis of information to turn raw data into actionable intelligence. The National Intelligence Model (NIM) is the tried and tested model that provides a framework for the management and development of intelligence within an organisation. The intelligence analyst is seen as one of the key people assets to this business model. There is a certain expectation of analysts to gaze into their crystal balls and immediately provide answers to the world s problems. Very few analysts, if any, are magicians and even fewer are able to pull rabbits from hats. Moreover, analysts are intelligence professionals who, with the right training, are able to put forward credible theories or inferences, in order to help solve the identified problem. This is the basis of any intelligence analysis the ability to build and develop reasoned inferences and make recommendations based upon them. These inferences involve hypothesising, estimating and predicting in order to answer the key questions of: who, what, where, when, why and how. Through the process of inference development, the intelligence team are able to advise the client on how to best tackle the problem. The Achilles heel of an intelligence department is the all too frequent incident of a manager seeking analytical assistance to justify their back of a fag packet hunches. It is the role of the intelligence analyst to proactively undertake regular screening of the available intelligence and information in order to develop a clearer picture of those individuals or organisations active at any given time. We must be wary of not pre-determining the target and gathering intelligence simply to justify the initial gut feeling. There is, therefore, a real need for an intelligence department to be proactive in their risk identification. In order to achieve this, there must be a co-ordinated process of intelligence collection and development; from the outcome is the identification of a subject nominal or organisation. It is the role of the analyst to identify those key risks and to advise the client of the threat that they pose to their business. In this vein, a balance of strategic and tactical analysis is crucial for any intelligence department being able to understand the day to day problems and how they fit into the bigger picture is key. While strategic intelligence analysis is hampered in many instances due to data availability, its role must not be underplayed. However, the role of tactical analysis is the bread and butter and is crucial in offering the client the advice they require. Fraud focus 7

8 In summary, an intelligence department must be focused in its objectives and have the organisational support to not only operate successfully but to provide a problem-solving solution to the client. Analysis has a key role to play in the decision-making process and identification of risk and it should be given the recognition it deserves. Ben Fitzhugh Intelligence analyst, BLM Birmingham Article 75: know your status Background Mr Y is involved in a road traffic accident with Mr X. Mrs Y and Mr and Mrs Z, all passengers in Mr Y s vehicle, are all injured and together with Mr Y, submit a claim to Mr X, who in turn looks to his own insurers to settle these claims. Liability for the accident is disputed. At the time of the accident Mr X was insured with ABC Insurance. When he incepted his policy he failed to disclosure several driving convictions. ABC Insurance void Mr X s policy. Status of the insurers Whilst the above is not an uncommon situation, the status of a defendant s insurers makes a difference to the types of notice that a claimant must give to an insurer on the issue of proceedings and the procedure to be followed by the claimants. For this reason it is important that insurers take steps to ascertain their own status as soon as a claim is intimated to them. Contractual insurer and RTA insurer If a defendant has motor insurance that is in force at the time of the accident, covers the vehicle concerned, indemnifies the offending driver and permits the use of the vehicle at the time of the accident, an insurer should be contractual insurer or insurer per se. If the insurance cover is in order but a policyholder breaches a policy condition eg failing to report the accident or if the offending driver was not permitted to drive on the certificate of insurance, for example, an insurer must still satisfy a judgment under section 148 of the Road Traffic Act 1988, although in this situation will be an RTA insurer. An RTA insurer has a statutory right of recovery against his policyholder/offending driver. Article 75 status Article 75 of the Memorandum of Association of the MIB reflects an agreement between the Bureau and its members and sets out circumstances under which an insurer is required to pay a claimant, regardless of the invalidity of the policy. If an insurer is Article 75 insurer, they stand in the shoes of the MIB and may apply the Uninsured Drivers Agreement on behalf of the MIB. The effect of Article 75 status There are some distinct advantages for an insurer who correctly identifies their status as that of Article 75 insurer, namely that: Subrogated and other contractual claims may be avoided. The claimant s solicitors are bound by the provisions of the Uninsured Drivers Agreement, unless the insurer agrees to waive these. Fraud focus 8

9 Notice requirements on claimants are far more stringent. The joint tortfeasor principle may apply. Practical application The above situation is based on an actual case which resulted in a saving to insurers in the region of 30,000 by the correct identification and application of the insurer s status. Following the discovery of Mr X s non disclosure, a letter of voidance was sent to him by ABC Insurance. However, this in itself only reduced the insurer s status to Article 75 insurer. Mr Y commenced proceedings for his claim, and ABC Insurance applied to be joined into that action as a second defendant. At the same time, within three months of the date of issue of Mr Y s proceedings, ABC Insurance commenced proceedings against Mr X to obtain a declaration that they were Article 75 insurer only. The claim was ultimately compromised between all three parties, with liability being agreed on a 50:50 split. This not only significantly reduced the potential outlay to insurers but on this occasion, the agreement of Mr X was obtained that he would pay Mr Y s damages personally (only payable by ABC Insurance if judgment remained unsatisfied within seven days after Mr Y became entitled to enforce it) and Mr Y s costs being met by ABC Insurance. Whilst ABC Insurance did still have to make a reduced payment on this claim, the main saving was achieved in defeating the passenger claims of Mrs Y and Mr and Mrs Z. As liability was apportioned, ABC Insurance was able to apply the joint tortfeasor principle and shift the burden of dealing with those three claims to Mr Y s own insurers a total estimated saving of around 30,000 for those claims alone. Trial success January brought BLM trial success in Bradford County Court when the firm successfully assisted insurers in defeating a claim brought by a claimant where the defendant not only denied any collision, but denied that neither he nor his vehicle were involved in the alleged incident. At trial the judge agreed that the defendant s engineering evidence spoke for itself and as there was found to be no evidence of either damage or repair to the defendant s vehicle, a significant point considering the extent of damage alleged to the claimant s vehicle, the case was dismissed and costs awarded in favour of the defendant. This is a good result, as there were six passenger claims lurking in the background, which have now also been defeated another significant saving for insurers. Naomi Grant Associate, BLM Manchester Revision of CPR rules In a BLM recent case, insurers decided to revisit a decision at first instance following refusal by a district judge to set aside judgment under CPR Judgment had been entered when the policyholder, as happens in many suspect cases, did not acknowledge proceedings or notify insurers. Fraud focus 9

10 The common features of this case were that: the investigations of the claim were at a very early stage and insurers could not lay any positive evidence before the court which might infer fraud there were serious concerns about possible staging, with inconsistent damage but no definitive engineer s report insurers were unable to secure the co operation of the insured which had led insurers to refuse to indemnify their policyholder pre-issue and withdraw an earlier admission the policyholder was not the registered owner of the vehicle the repairing garage had noted the fact that the vehicle may not have been roadworthy at the time of the accident, and inception of the policy due to an earlier collision. Without an opportunity to finalise investigations before proceedings, insurers had to consider carefully their evidence. Preserving this evidence pending the outcome of enquiries was important so as not to tip off the claimant before formally pleading fraud. The Appeal Court was asked to consider what the appropriate test should be on an application to set aside default judgment against its insured, where insurers have a financial interest in the case but little evidence. Insurers wished to be joined as second defendants and enter a defence putting the claimant to proof without the means necessary to present evidence of a reasonable prospects defence or fraud. No issue was taken about joining of insurers as second defendants. The circuit judge cited the following reasons which are likely to offer useful guidance to all insurers in this position: 1 Had insurers been joined or applied to join proceedings before default judgement had been entered, then CPR Part 12.8 would have applied and the court would have not permitted default judgment to have been entered against the first defendant. It is therefore essential if insurers have concerns that steps are taken immediately upon notification of intention to issue to advise the claimant s solicitors of their insurer s intention to be joined and to warn them not to seek default judgment. There would be favourable costs arguments if the claimant subsequently took this step. Where insurers are not able to do this, judgment having been entered before any notification was made to the court or the claimant s solicitors that insurers had concerns and a financial interest (and wished to be joined), the correct test was set out in CPR Part If the application was made under (a) the insurer would need to show a real prospect of success. The judge indicated the need to have a basic framework of the allegations against the parties (particularly if fraud was suspected) as to why insurers should be permitted to fully participate. The judge suggested the court would have been greatly assisted if there had been some hint of insurers concerns when making the application. Whilst there are reasons to preserve the evidence until it is finalised and it may not always be possible to do so, insurers should consider what may be capable of disclosure. Factual evidence against the insured which would corroborate insurers decision not to indemnify would appear to be the best line of argument and, as the first defendant is not usually in attendance, to rebut these assertions this may be persuasive. In this case there was no such evidence available and the court was asked to consider under (b) some other good reason to set aside judgment. Fraud focus 10

11 The court is generally willing to listen to arguments that judgment should be set aside on public policy grounds where fraud is inferred. In the case, insurers had acted promptly when notified of judgment and applied to set aside and be joined. In addition, the insurers had alerted the court to their own indemnity concerns against the policy holder which the court considered was sufficient to set aside. In practical terms where insurers have concerns they need to be alert to the possible issue of proceedings particularly if there is no co operation from the insured. It is advisable when the seven day letter arrives indicating imminent issue of proceedings (and serving notice under s152 RTA 1988) that insurers take the following steps to inform the claimant s solicitors in writing that: 1 Insurers are reserving/refusing indemnity, giving reasons; and 2 Insurers intend to be joined to proceedings from the outset or once issued; and 3 Judgment should not be entered in default of response by the policyholder. Claimants may not be willing to join insurers before issue, and in such circumstances, a copy of proceedings should be requested by insurers to be provided when proceedings are served on the insured so that steps can be taken to be joined. If the claimant attempts to enter judgment insurers should draw this letter to the attention of the court and invite the court to set aside with costs. This case shows that even in suspicious claims where there is no real evidence of fraud at the stage of issue, the court should be willing to set aside judgment and allow insurers to play a full part in the claim and protect their financial interests. Paul Wainwright Solicitor, BLM Birmingham Fraud focus: recent successes and developments The tainting of claims through fraud is a common issue faced by insurers. Is a claimant entitled to recover where a proportion of his claim or that of a co-claimant is found to have been fabricated? The courts have often adopted a differing approach to first party claims by individuals against their own insurers, as against third party claims. Established cases such as Axa v Gottleib and Direct Line v Khan both held that a fraudulent portion of a claim would taint any genuine elements and result in the whole claim failing. Insurers facing claims from third parties have faced more difficulty when finding evidence of fraud in part of a claimant s claim. The 2007 decision in Churchill Car Insurance v Kelly was disappointing in its finding that despite the court believing that part of the claimant's claim had been deliberately fabricated, he was still entitled to recover in respect of the remainder. The recent decision in Khan and Others v Hussain (1), Ashraf (2) and the MIB (3) has offered some hope. In this case, at first instance, the deputy district judge held that despite finding that the third claimant had not been present and whose claim was therefore fabricated, the remaining claims would stand. On appeal to the High Court, it was held that the dishonesty of the claimants was an attempt to obstruct the just disposal of the case and in doing so, the claimants had failed to assist the court Fraud focus 11

12 in following the overriding objective in accordance with CPR 1.1 and 3.4. The court therefore struck out the claims of those who had supported the fraudulent one. In this case, His Honour Judge Hawsworth applied elements of the judgment in Ghalib & Ghafar v Hadfield. The approach has also been followed in a recent case of Bashir v Ahmed, a county court decision in which the same points were followed, namely that the court was to decide: 1 To what extent the claimants have failed to help the court with furthering the overriding objective (CPR). 2 Whether, in the light of any failure, the court should exercise its discretion to strike out the statements of case under CPR 3.4. In Bashir, the court struck out all claims, including those of the genuine occupants. Notwithstanding the above, the approach of the court in cases such as this is far from clear and rests with the discretion of the judge. In Gulstan and Mahmood v Brake Brothers, the district judge held that the second claimant had not been present in the third party vehicle and struck his claim out. However, he found that despite supporting the second claimant's claim, the first claimant had still sustained injury as a result of the defendant's negligence and damages were awarded. The district judge held that the penalty imposed on the first claimant, as a result of his conduct was that his costs in full were disallowed and the defendant s costs awarded against him and his co-defendant on an indemnity basis. It would appear that the court's approach to tainting is evolving. However, it can be seen from the above that much depends on the discretion of the trial judge. Whilst striking out claims in their entirety is an ultimate sanction for a judge, they will be much more inclined to exercise their discretion on costs if it is discovered that any part of a claim is fraudulent. In Painting v Oxford University, the penalty imposed on the claimant fabricating part of the claim was one in costs, an approach also favoured by the High Court in Churchill Car Insurance v Kelly. This is an evolving area of law and one that should be approached in an informed manner. Where insurers wish to raise such arguments, they should be fully pleaded to make the judge aware of the crucial issues to be decided upon from the outset. Whilst much will be case specific, those challenging claims need to react and adapt to this evolving area. Jarred Bold Solicitor, BLM Manchester Fraud focus 12

13 BLM offices Birmingham Cardiff Leeds Liverpool 63 Temple Row 23 Neptune Court Park Row House Castle Chambers Birmingham Vanguard Way Park Row 43 Castle Street B2 5LS Cardiff CF24 5PJ Leeds LS1 5JF Liverpool L2 9SU Tel: Tel: Tel: Tel: Fax: Fax: Fax: Fax: London Salisbury House London Wall London EC2M 5QN Manchester King s House 42 King Street West Manchester M3 2NU Southampton Carlton House Carlton Place Southampton SO15 2DZ Stockton-on-Tees Innovation House Yarm Road Stockton-on-Tees TS18 3TN Tel: Fax: Tel: Fax: Tel: Fax: Tel: Fax: Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Fraud focus is published by the marketing department of Berrymans Lace Mawer on behalf of the partnership. Berrymans Lace Mawer Berrymans Lace Mawer is regulated by the Solicitors Regulation Authority and accredited to quality standards ISO 9001 and Lexcel. O:\7 BLM PUBLICATIONS\BLM PRINT PUBLICATIONS AND BACK ISSUES\NEWSLETTERS\FRAUD FOCUS\FRAUD FOCUS1_0908.DOC Fraud focus 13