Practice Director Tony McDaid Senior Practice Managers Martin Hulbert & Zoe Owen

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1 Personal Injury Group Fraudulent Claims Seminar 2015 Wednesday 11th March 2015 Hotel Football, Manchester Tweet Sponsored by Practice Director Tony McDaid Senior Practice Managers Martin Hulbert & Zoe Owen Practice Group Clerks Natasha Beauchamp, Robert McDonald, Matthew Saunderson, William Theaker & Matt Reeves Tel: +44 (0) Birmingham Fountain Court Steelhouse Lane Birmingham B4 6DR DX Fountain Court Birmingham London Greenwood House 4-7 Salisbury Court London EC4Y 8AA DX 449 London Chancery Lane Bristol 38 Queen Square Bristol BS1 4QS DX 7838 Bristol East Midlands 5 Museum Square Leicester LE1 6UF DX Leicester 2 No5 Chambers provides services on an equal opportunity basis

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3 Fraudulent Claims Seminar 2015 Wednesday 11 th March 2015 Hotel Football Contents Section 1 Head of Group Profile Paul Bleasdale QC Members List Seminar Programme Seminar Note Paper Section 2 Proof, Procedure and Professional Ethics Matthew Brunning and Emma Corkill, No5 Chambers Section 3 Surveillance and Social Media Esther Gamble and James Stoll, No5 Chambers Section 4 Fundamental Dishonesty Stratos Gatzouris, Partner at Hill Dickinson Section 5 Over Egging the Pudding Mike Henman, Partner at Morris Orman Hearle Section 6 LVI and Phantoms Gareth Compton and Gemma Roberts, No5 Chambers Section 7 Perjury and Contempt Paul Evans and Jack Feeny, No5 Chambers

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7 Paul Bleasdale QC Personal Injury and Clinical Negligence Head of No5 Chambers Head of Personal Injury Group at No5 Chambers Paul has significant experience in personal injury and clinical negligence cases acting on behalf of both claimants and defendants. Silk: 2001 Year of Call: 1978 Position: Head of Chambers Clerks Senior Practice Managers Martin Hulbert Zoe Owen Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) Fax: +44 (0) Paul's experience in clinical negligence work has encompassed trials on liability and quantum, principally (but not exclusively) on behalf of claimants. The areas of work that Paul has been involved in have included, for example, nursing errors, negligent diagnosis and treatment by GPs, accidents at birth, negligent treatment of breast cancer and a wide range of other types of claim. He has had a particular interest in industrial disease cases i.e. deafness; repetitive strain injuries; vibration white finger; industrial asthma; dermatitis; workplace stress and asbestos related disease. In Silk, Paul has acquired extensive experience of catastrophic injury cases, claims including brain damage and fatal accident claims frequently attracting awards or settlements of very high value. Paul also has experience of undertaking multi party litigation subject to group litigation orders. QUALIFICATIONS LLB (Hons) Approved for direct public access MEMBERSHIPS Personal Injuries Bar Association APPOINTMENTS Recorder - Crown and County Court Deputy Chairman of the Agricultural Lands Tribunal Honorary Professor at University of Birmingham RECOMMENDATIONS A personal injury specialist with extensive experience acting for claimants and defendants in catastrophic claims. He is noted for his aptitude in claims involving brain injury and industrial disease. "He is a go-to silk for tricky cases in liability; he's incredibly tenacious, willing to stand up and fight, and not afraid of difficult cases at all." "He's got very good tactical awareness and negotiating skills, so he's very accomplished not only in trials but also in settlement meetings." (Chambers UK 2015)

8 Noted for his experience, knowledge and pragmatic approach. (Legal ) Paul Bleasdale QC receives widespread accolades for his specialist expertise in a range of catastrophic work, including complex brain and spinal injury claims, and industrial disease litigation. "He is a pure litigator in the true sense of the word, and his advocacy is second to none." "He's the undoubted leader for serious PI in the Midlands." (Chambers UK 2014) No5 Chambers key silks include Paul Bleasdale QC, who is recommended for his first-class attention to detail, encyclopaedic knowledge, and ability to deliver devastating cross-examination (Legal ) Paul Bleasdale QC is a "first-rate personal injury practitioner." He is widely praised for his "formidable negotiation and advocacy skills," and is a favourite of instructing solicitors due to his "genuine commitment to clients" and his "real willingness to fight difficult cases." (Chambers UK 2013) ''Paul Bleasdale QC who specialises in catastrophic head and spinal injury claims, singled out.'' (Legal ) Paul Bleasdale QC is considered to be "a wise choice if you've got a real battle on your hands." Tough in court, he is all charm outside it and a barrister who is "very sympathetic with clients." (Chambers and Partners 2011) In its ranks it has many highly respected personal injury silks, not least personal injury and clinical negligence specialist Paul Bleasdale QC. Sources note that "few silks have the street-fighting skills" of Bleasdale, a lawyer with "a pragmatic and detailed approach to brain injury litigation." (Chambers UK 2010) 'Is expert in complex occupational claims and "very robust in negotiation"' (Legal Edition) one of the best in Birmingham, remains a firm favourite...praised for his straightforward style and robust advocacy. He receives particular acclaim for his industrial disease expertise. (Chambers & Partners, 2008 Edition) a sensible and committed advocate (Chambers & Partners, 2007 Edition) leading silk (Chambers & Partners, 2006 Edition) is highly recommended for high-value PI and industrial disease instructions. (The Legal 500, 2006 Edition) Described as a dream when it comes to solicitor-counsel relations (Chambers & Partners, 2005 Edition) makes the best of any case (The Legal 500, 2005 Edition) determined and creative (The Legal 500, 2005 Edition) NOTABLE CASES CM v Parkdean Holiday Parks Ltd and Upperbay Limited (2014) Near drowning accident involving young child. Hypoxia resulting in

9 catastrophic brain injury. Periodical payments for care regime involving mother for life and case management. JH v CICA (2013) Shaken baby. Award 5 million. Uwigize v Nottingham University Hospital NHS Trust (2013) Negligent failure to diagnose platybasia; claimant quadriplegic. CE v Boparan (2012) Catastrophic injury to infant as a result of RTA at the age of 1 year. Periodical payments for lifetime care and case management in adapted accommodation. Claim complicated by divorce of parents and public law proceedings. Lump sum 5m: p.p. 450,000 per annum. Gregory v ISR Logistics & ABC Express and Farrelly (2012) Locked in tetraplegic. Advocate appointed to learn to communicate with claimant and speak on his behalf. Insurers purchased bungalow for adaption (purchased on behalf of claimant prior to approval hearing). Periodical payments for life for care and case management. Lump sum 2.1m: p.p. 260,000 per annum. Powertrain Group Litigation (2010) Group litigation on behalf of former employees of Powertrain at the Longbridge car plant, Birmingham who claimed damages for respiratory disease caused by exposure to contaminated coolant oil. The Defendants were their employers Powertrain and Houghton PLC who supplied the coolant oil and managed them on site during the material period. Limond v Shell UK (2010) Claimant suffering myelofibrosis (a form of bone marrow cancer) alleged to be the result of exposure to benzene while working on oil and gas installations. Markham v ICI (2010) Claimant suffering from bladder cancer alleged to have been caused by exposure to radiation from phosphoric acid scale blocking pipes in a fertilizer factory in Joplin v Dudley Group of Hospitals NHS Trust (with Emma Brown) (2010) Claimant with Parkinson's Disease. Rendered tetraplegic as a result of delay in diagnosing spinal abscess after admission to hospital. Issues on causation of tetraplegia and long term prognosis in light of Parkinson's. Armstrong and other Claimants v Angle Ring Company (2009) Seventeen employees claiming noise induced hearing loss in the Defendants' factory. Evans v West Midlands Strategic Health Authority and Walsall Manor Hospital and NHS Trust (2009) Very young girl: failure to diagnose meningitis while in hospital and subsequent negligent surgery to excise dermal cyst. Brain damage: neuropathic bladder and bowels as well as hemiplegia. Issues on liability of community health physician failing to discover sinus at six week check up and thereafter diagnosis of meningitis after admission to hospital. Liability admitted for negligent surgery to deal with dermal cyst and eventually for failure to diagnose meningitis while an inpatient. Keown v Coventry Health Care NHS Trust [2006] EWCA Civ39 Child trespasser. Kiani v Land Rover Ltd [2006] EWCA Civ 880 Newman v National Dock Labour Board and other Defendants (2005) Advising on employment status of NDLB and liability for asbestos related disease suffered while working under the NDLB scheme for companies that no longer exist and in respect of whom no insurer could be traced.

10 Various Claimants v Transco PLC (2005) Claim by approximately 40 gas engineers suffering work related upper limb disorders as a result of on board computer/display screens in Transco vehicles. Allen v British Rail Engineering Ltd [2001] EWCA and [2001] ICR 942 (CA) Test Case: VWF

11 Members list Personal Injury Group To view or download members CVs please visit Paul Bleasdale QC - Head of Group Silk 2001 Year of Call 1978 Satinder Hunjan QC Silk 2002 Year of Call 1984 Chris Bright QC Silk 2009 Year of Call 1985 Jonathan Jones QC Silk 2012 Year of Call 1994 Roger Smith Year of Call 1968 Allan Dooley Year of Call 1970 (Bar: 1991) John Gilbert Harvey Year of Call 1973 Graham Cliff Year of Call 1973 Roger S Giles Year of Call 1976 William Pusey Year of Call 1977 Kevin J O Donovan Year of Call 1978 Simon Michael Year of Call 1978 Andrew Keogh Year of Call 1978 Timothy Newman Year of Call 1981 Stephen Campbell Year of Call 1982 Neil Thompson Year of Call 1982 Andrew J McGrath Year of Call 1983 Richard Moat Year of Call 1985 Russell Bailey Year of Call 1985 Ian Bridge Year of Call 1988 Malcolm Duthie Year of Call 1989 Mark Radburn Year of Call 1991 Nick Xydias Year of Call 1992 Adam Farrer Year of Call 1992 Nigel Brockley Year of Call 1992 James Stoll Year of Call 1994 Robert Smallwood Year of Call 1994 David Tyack Year of Call 1994 Dr Simon Fox Year of Call 1994 Anna Diamond Year of Call 1995 Carol Knotts Year of Call 1996 Henry Pitchers Year of Call 1996 Richard Case Year of Call 1996 Gareth Compton Year of Call 1997 Matthew Brunning Year of Call 1997 Karl Hirst Year of Call 1997 Jonathan Derrington Year of Call 1998 Jamie Gamble Year of Call 1999 Louisa Denning Year of Call 1999 John Coughlan Year of Call 1999 Charles Crow Year of Call 1999 Practice Director Tony McDaid Senior Practice Managers Martin Hulbert & Zoe Owen Practice Group Clerks Natasha Beauchamp, Robert McDonald, Matthew Saunderson, William Theaker & Matt Reeves Tel: +44 (0) Fax: +44 (0)

12 To view or download members CVs please visit Teresa Hargreaves Year of Call 1999 Richard Adams Year of Call 1999 Emma Brown Year of Call 2001 Michael Wingrave Year of Call 2001 (Grand Cayman Bar: 2012) Paul Evans Year of Call 2001 Esther Gamble Year of Call 2001 Rupert Beloff Year of Call 2001 Mark Bradshaw Year of Call 2002 Denise Owen Year of Call 2003 Fatim Kurji Year of Call 2003 Mamta Gupta Year of Call 2004 James Leslie Year of Call 2004 Philip Williams Year of Call 2005 Victoria Yates Year of Call 2006 Richard Oakes Year of Call 2007 Jack Smyth Year of Call 2007 Simon Hunka Year of Call 2007 Russell Holland Year of Call 2008 Charlotte Robinson-Jones Year of Call 2008 James Burke º Year of Call 2009 Catherine Jones Year of Call 2010 Richard Grimshaw Year of Call 2010 Caroline Jennings Year of Call 2010 Hashi Mohamed Year of Call 2010 Emma Corkill Year of Call 2010 Emma Williams Year of Call 2012 Eamonn Hurley-Flynn Year of Call 2013 Dr Jonathan Punt Year of Call 2005 Jack Feeny Year of Call 2005 Katie Feeney Year of Call 2005 Yasmin Yasseri Year of Call 2005 Suella Fernandes Year of Call 2005 Richard Cooke Year of Call 2005 Nicholas Ferrari Year of Call 2005 Gemma Roberts Year of Call 2006 Practice Director Tony McDaid Senior Practice Managers Martin Hulbert & Zoe Owen Practice Group Clerks Natasha Beauchamp, Robert McDonald, Matthew Saunderson, William Theaker & Matt Reeves Tel: +44 (0) Fax: +44 (0)

13 Fraudulent Claims Seminar 2015 Wednesday 11 th March 2015 Hotel Football Programme 3 CPD 13:00 14:00 Registration and a Buffet Lunch 14:00 14:15 Welcome and Introduction Paul Bleasdale QC, Head of the Personal Injury Group at No5 Chambers 14:15 14:45 Proof, Procedure and Professional Ethics Matthew Brunning and Emma Corkill, No5 Chambers 14:45 15:15 Surveillance and Social Media Esther Gamble and James Stoll, No5 Chambers 15:15 15:35 Fundamental Dishonesty Stratos Gatzouris, Partner at Hill Dickinson 15:35 15:55 Over Egging the Pudding Mike Henman, Partner at Morris Orman Hearle (Stratos and Mike are Members of the Forum of Insurance Lawyers)

14 Fraudulent Claims Seminar 2015 Wednesday 11 th March 2015 Hotel Football Programme 3 CPD 15:55 16:10 Refreshment Break 16:10 16:40 LVI and Phantoms Gareth Compton and Gemma Roberts, No5 Chambers 16:40 17:10 Perjury and Contempt Paul Evans and Jack Feeny, No5 Chambers 17:10 17:15 Question & Answer Session 17:15 Optional Stadium Tour and Networking

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21 Matthew Brunning Fraudulent Insurance Claims Matthew specialises in personal injury litigation. He has particular interest in, and experience of, claims involving allegations of fraud in a variety of contexts: employers liability, public liability, and all aspects of motor claims. Year of Call: 1997 Clerks Senior Practice Managers Martin Hulbert Zoe Owen Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) Fax: +44 (0) Recent cases have included: staged/no accident cases, in both motor vehicles and at work; low velocity impact / no injury cases; bogus passenger claims, including Bashir & others v. Bashir & Fortis (minor s claim struck out for supporting dishonest claims of family members); public liability claims, including those involving family members; and exaggerated claims. In addition, Matthew represented a local authority in its application for costs against a non-party credit hire company, the first successful application of its kind, recently upheld by the Court of Appeal. As well as court work, Matthew regularly advises solicitors, insurers, and clients at all stages of such litigation, assisting in early decision making and planning. He has given training to insurance industry staff and solicitors on how to defend suspected fraudulent cases. In 2007 Matthew was appointed to the Attorney-General s regional panel. He is a contributing editor to Butterworth s Personal Injury Law Service. QUALIFICATIONS BA (Worcester College, Oxford) MEMBERSHIPS Personal Injuries Bar Association RECOMMENDATIONS Matthew Brunning offers a "high level of service". Legal NOTABLE CASES Bashir & others v. Bashir & Fortis Farrell & Short v Birmingham City Council & DAMS [2009] EWCA Civ 769 Successfully defended the fraudulent claim brought by F & S against B.C.C. Thereafter Counsel advised upon, drafted and made a successful application for costs against the non party credit hire company - the first reported application of its kind - and successfully defended the credit hire company s appeal in the Court of Appeal.

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23 Emma Corkill Personal Injury Emma accepts instructions in all areas of personal injury work and acts for both Claimants and Defendants. Emma appears in Court on a daily basis in trials, applications and other interim hearings. She regularly advises on a wide range of personal injury issues. Emma s busy personal injury practice involves: Year of Call: 2010 Clerks Senior Practice Manager Martin Hulbert & Zoe Owen Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) Fax: +44 (0) Road traffic accidents; Fraudulent claims including Low Velocity Impacts, staged collisions and exaggerated injuries; Accidents in the workplace; Occupiers liability cases; Highways cases; Criminal Injuries Compensation Authority claims and appeals; Inquests; Personal injury cases involving children; Stage 3 Protocol cases; and Credit Hire claims. Emma is happy to act under a Conditional Fee Agreement where appropriate. Qualifications BVC (Outstanding), BPP Law School GDL (Commendation), BPP Law School MA Chinese Law, Politics and Mandarin (Distinction), SOAS BA(Hons) Drama, Loughborough University Awards: Inner Temple Exhibitioner and recipient of the Philip Teichman Award.

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25 Fraud Proof, Procedure and Professional Ethics Wednesday 11 th March 2015 Tweet us your Comments and Questions Presented By Matthew Brunning and Emma Corkill Background Greater public and judicial awareness of fraudulent claims New varieties emerging all the time Increased specialism & sophistication of lawyers on both sides New tools for new problems? Background Higher courts different perspective Slow to react Problems: Credit hire; bogus claims; etc Their problem or ours? 1

26 What Is Fraud? A false representation Made knowingly Without belief in its truth, OR reckless/careless as to whether it was true or false [Derry v Peek (1889) 14 App.Cas 337] A false statement is not fraudulent if there was an honest belief in its truth Tortious deceit is not quite the same as the crime of fraud The Defence CPR 16.5 a Defence must state: o Which allegations he admits, denies or is unable to admit or deny but which he requires the Claimant to prove. o Where he denies an allegation, the Defendant must state his reason for doing so and if he intends to put forward a differed version of events, he must state that version. When Can You Plead Fraud? Honesty, integrity and not abusing role as an advocate BSB Handbook rc9: You must not draft any statement of case, witness statement, affidavit or other document containing any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud You can have sufficient material to plead fraud without it being likely that you would successfully prove fraud at trial 2

27 When Can You Plead Fraud? BSB Handbook rc7: o You must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person; o You must not make a serious allegation against a witness whom you have had an opportunity to cross examine unless you have given that witness a chance to answer the allegation in cross examination Pleading Fraud Medcalf v. Weatherill [2002] UKHL 27 at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it. Contents Of A Fraud Defence Plead facts relevant to the Defence being advanced, do not plead evidence Links between occupants Inconsistencies in eg, medical records Claimant is entitled to take issue with the accuracy of the record and potentially call the doctor to give evidence (unlikely in practice) Obiter comments in Charnock: obligation on own party to address inconsistencies in the evidence but the point must have been properly pleaded to alert the them to the potential issues. 3

28 Proving Fraud Burden of proof is on the Claimant to prove their case; however, if they get over this hurdle and the Defendant alleges fraud, it is for the Defendant to prove fraud The Defendant must prove fraud on the balance of probabilities A Judge can find that the Claimant failed to prove his/ her case and the Defendant failed to prove fraud. Burden Of Proof Constantine Line v. Imperial Smelting Corporation the burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui negat incumbit probatio. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. (proof rests on he who affirms not he who denies) The Burden In Fraud Cases re H (minors) [1996] A.C. 563 When assessing the probabilities the court will have in mind the factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely that accidental physical injury Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. 4

29 The Burden In Fraud Cases Re H continued Although the result is much the same, this does not mean that where a serious allegation is in issue, the standard of proof required is higher. It means only that the inherent probability of an event is itself a matter to be taken in account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Put To Proof Instead Of Fraud Difference between denying and putting to proof If insufficient information to plead fraud then put to proof This is particularly useful where there was a genuine accident but credibility in relation to the extent of injuries suffered is the issue Concerns Defences Frowned upon and unnecessary in any event Hussain v Amin & Anor [2012] EWCA 1456 o Obiter comments by Lord Justice Davis o Message: either allege it properly if you have sufficient evidence or don t. Insinuating without alleging is inappropriate and unfair on the Claimant 5

30 Why Do You Need To Get It Right? Ethical obligations Costs consequences Limitations on cross examination Failure To Plead Fraud Or An Answer To Amin? Regina Fur Co v Bossom [1958] 2 Lloyd's Rep. 425: a defendant is entitled to say I require this case to be proved strictly, and admit nothing. Where such is the form of the pleading, it is not permissible for [the Defendant] to proceed to put forward some affirmative case which they have not pleaded or alleged; and it is not, therefore, right that they should, by crossexamination of the plaintiffs or otherwise, suggest such an affirmative case Other Procedural Weapons Part 18s CPR 18.1 (1)(a) clarify any matter which is in dispute in the proceedings or CPR 18.1 (1)(b) give additional information in relation to any such matter o Are previous accidents and injuries matters in these proceedings? o Are the P18s simply an optimistic fishing expedition? In a stronger position if have formally pleaded fraud 6

31 Other Procedural Weapons Part 35 Questions Have in mind end goal of establishing fraud P35.6 (2)(c) questions to an expert must be for the purpose only of clarification of the report Other Procedural Weapons Further options to consider: Declarations of non-liability (Messier-Dowty v. Sabena & others [2000] EWCA Civ 48) Pre-action disclosure and non-party disclosure (police reports; hire company information; previous proceedings) Notice to admit facts Joining separate claims arising from same accident Fraud Proof, Procedure and Professional Ethics Thank You For Listening Tweet us your Comments and Questions Presented By Matthew Brunning Emma Corkill +44 (0) (0)

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35 Esther Gamble Fraudulent Insurance Claims Esther specialises in personal injury litigation and has a particular interest, and considerable experience, in dealing with claims arising out of road traffic accidents in which insurance fraud is suspected. Year of Call: 2001 Clerks Senior Practice Managers Martin Hulbert Zoe Owen Practice Director Tony McDaid Contact a Clerk Tel: +44 (0) Fax: +44 (0) She has extensive experience in dealing with the full range of issues which arise in such cases, including staged accidents, induced accidents, phantom passengers, low velocity impacts and fraudulent credit hire and repair claims. Esther is often first instructed at an early stage in such claims, to test policyholders and witnesses evidence in conference, and/or advise on further investigations to be made. She regularly provides advice as to whether and when an allegation of fraud can properly be raised, and provides practical advice on tactics and evidence (both lay and expert) as claims progress. She is happy to make herself available to draft defences at short notice. For those cases which proceed to trial, with her considerable past experience representing police forces in civil proceedings, she is adept at cross-examining witnesses on allegations of fraud and dishonesty. Esther regularly presents seminars and workshops on legal, procedural and costs issues to solicitor and insurer clients. QUALIFICATIONS BSc Mathematics & Philosophy (First Class; Firth Centenary Prize; Peter H. Nidditch Award) Postgraduate Diploma in Law (Distinction; Taylor Award) Bar Vocational Course (Outstanding) Queen Mother Scholar (Middle Temple) 1999 & 2000 MEMBERSHIPS Personal Injuries Bar Association Birmingham Medico-Legal Society

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37 James Stoll Fraudulent Insurance Claims In recent years, James has been instructed increasingly on behalf of Defendant Insurers in cases where fraud is suspected or alleged. James is routinely instructed at all stages of litigation to include: Year of Call: 1994 Clerks Senior Practice Managers Martin Hulbert Zoe Owen Practice Director Tony McDaid - Early conferences with proposed Defendants/policyholders and witnesses to test their evidence - Advising in writing - Pleadings (Defences, Counter Schedules of Loss, Part 18 Questions, Part 35 Questions, Applications) - Applications, Case Management Conferences, Trials. James has been instructed in cases involving: - Staged accidents - Induced accidents - Phantom passenger claims - LVI claims Contact a Clerk Tel: +44 (0) Fax: +44 (0)

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39 Social Media The question isn't, 'What do we want to know about people?', but 'What do people want to tell about themselves? Mark Zuckerberg - CEO and co-founder of Facebook Why investigate it? At last count (December 2014) Facebook had close to 1.4 billion users. Barely a day goes by when somebody hasn t got themselves in significant trouble as a result of an ill-judged post or tweet. Since 2010 the National Security Agency has been collecting information from, amongst other sources, Facebook. What are we looking for? Commonly we are looking for 2 things: 1. Proof of inconsistency or outright fabrication 2. Links - between people who either deny knowing each other and/or ought, in all the circumstances, not to know each other. Pre-issue - Evidence Gathering Publicly accessible information. Gather from the outset; repeat as time passes. Preserve it. Use Part 18 requests/letters. Go beyond just the claimant themselves. 1

40 Post-issue Disclosure and Service Apply same principles as for disclosure of surveillance evidence timing is everything. Ensure social media evidence is properly evidenced: exhibited to a witness statement, accompanied with a Civil Evidence Act Notice. Consider producing a standard factsheet setting out: 1. What social media sites are; 2. How entries are created and what inferences may be safely drawn from them; 3. What being a friend on Facebook means; 4. How you become a friend on Facebook; 5. Explanations of common terms e.g. walls, feeds etc; 6. The limitations of the evidence. Trial No definitive authority as yet as to how such evidence should be obtained and presented. Scott Schedule may be helpful in complex case. Cardinal rule: Is it relevant to the pleaded issues? Locke v Stuart & Axa Corporate Solutions Services Ltd [2011] EWHC 399 (QB) Facebook links showed connections between parties in series of accidents. Facebook/internet evidence discredited witnesses. Court found accident was manufactured. Marciniec v Gruszczynski & Axa Insurance Ltd [2013] NIQB 147 Facebook links showed connections between parties. Court found accident was staged. 2

41 Surveillance evidence Surveillance evidence has long been used as a legitimate weapon, when properly obtained and legitimately used, for a defendant to put before a Court that may demonstrate that a claimant s evidence is false. (Douglas v O Neill [2001] EWHC 601 (QB) para 42) When to Obtain Surveillance Evidence Medium/high value claims Suggestion or claim of significant ongoing disability Suspicions raised Coinciding with claimant giving account of symptoms On several occasions Disclosure Obligations Definition: Standard disclosure requires a party to disclose the documents on which he relies and the documents which adversely affect his own case, adversely affect another party s case or support another party s case (CPR 31.6). Definition: Giving disclosure means stating whether a document exists or has existed (CPR 31.2). Definition: Document means anything in which information of any description is recorded (CPR 31.4) - includes surveillance footage (Senior v Holdsworth [1976] QB 23; Garcin v Amerindo Investment Advisors Ltd [1991] 4 All ER 655). 3

42 Must be included in disclosure list but privileged so do not need to grant inspection. Practice direction 31APD3.2: In order to comply with rule 31.10(3) [ The list must identify the documents in a convenient order and manner and as concisely as possible. ] it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (eg letter, claimant to defendant). Douglas v O Neill: the fact that a document is video surveillance were to be disclosed in Part 2 that would inevitably alert a fraudulent claimant to the fact of surveillance and would be likely to deprive a defendant of the privileged opportunity to continue surveillance and to obtain evidence of the kind sought, namely evidence to demonstrate inconsistencies between the truth and the evidence being given by a claimant. (para 43) Ongoing duty of disclosure (CPR 31.11) (1) Any duty of disclosure continues until the proceedings are concluded. (2) If documents to which that duty extends come to a party s attention at any time during the proceedings, he must immediately notify every other party. 31APD3.3 If, after a list has been prepared and served, the existence of further documents to which the order applies comes to the attention of the disclosing party, the party must prepare and serve a supplemental list. CPR A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission. 4

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