Surveillance Evidence leads to finding of Fundamental Dishonesty

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25 July, 2019

Sudhirkumar Patel v (1) Arriva Midlands Ltd (2) Zurich Insurance PLC (2019) [2019] EWHC 1216 (QB) QBD (Judge Melissa Clarke ) 14/05/2019

A Claimant who alleged that he was unable to move or communicate has been found fundamentally dishonest and has had his claim struck out by the High Court, after surveillance evidence taken whilst shopping revealed he was able to talk and walk without assistance.

The Facts

The Claimant was involved in a RTA in January 2013. A bus owned by the First Defendant hit the Claimant. He had a cardiac arrest at the scene of the accident and was diagnosed with a brain haemorrhage. The Claimant's case was that, despite an initial recovery, he began to deteriorate within a week of the collision and at the time of filing the claim, he was significantly disabled.

When the expert examined the Claimant, he found him to be in bed, mute, unresponsive and without movement in his hands, arms or legs. The expert could find no neurological reason for the Claimant's condition. He considered whether the Claimant's unusual presentation was feigned, but on balance, he diagnosed the Claimant as having a severe conversion disorder arising from the collision. The Defendant's expert also found the Claimant in bed, mute and unresponsive. The Claimant's son reported that this was a typical day for the Claimant.

The Defendant instructed surveillance operatives to observe the Claimant over several days in May 2016. They recorded the Claimant and his son make a number of visits to several tyre and vehicle shops over a period of a number of hours. The Claimant walked, talked and acted unaided and without difficulty.

As a result, the Defendant successfully applied before the liability trial, to amend the Defence to plead that the claim should be struck out pursuant to s57 of the Criminal Justice Act 2015 on the basis of fundamental dishonesty.

The claim proceeded to a trial on liability at the end of October 2017. In a reserved judgment, the Judge found in favour of the Claimant on primary liability but made a finding of 40% contributory negligence.

In the subsequent hearing, witness evidence from the Claimant's family described the Claimant's condition as variable. The Judge did not accept that was the case and agreed with the post-surveillance opinion from the Defendant's expert that the diagnosis of a severe conversion disorder was not tenable, and that the Claimant's disability was feigned with no medical condition to account for it.

HHJ Clarke proceeded to find that the Claimant had capacity and concluded that on the balance of probabilities, the Claimant had been fundamentally dishonest, and his litigation friend had participated in the dishonesty. The entirety of the claim was dismissed, the court being satisfied that no substantial injustice would be caused in so doing.

Forbes Comment

Given the stark and unexplainable contrast between the Claimant's presentation to the medical experts and the surveillance evidence, the outcome of this case is perhaps not surprising. Even the Claimant's medical expert declined to have anything further to do with the case upon receipt of the surveillance evidence.

Mr. Alan Jeffreys QC, who acted for the Applicants, has reported that the outcome of this matter will have "devastating consequences" for the Claimant and his litigation friend. According to Mr. Alan Jeffreys QC, "the Claimant and his litigation friend were ordered to pay the costs, including the costs of the liability trial, on an indemnity basis. He was ordered to pay £50,000 on account of costs within three weeks, and permission to appeal was refused".

It has also been reported that upon the Defendants' further application the Judge confirmed that she was satisfied to the criminal standard of proof that the Claimant and his litigation friend were dishonest. Such a finding is essential for any future application for contempt of court which we anticipate is now likely to follow.

Source: Sudhirkumar Patel v (1) Arriva Midlands Ltd (2) Zurich Insurance PLC (2019) [2019] EWHC 1216 (QB) QBD (Judge Melissa Clarke ) 14/05/2019 and http://www.farrarsbuilding.co.uk/falling-under-a-bus-an-update-on-patel-v-arriva-midlands-zurich-insurance/

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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