Claimant fundamentally dishonest - Pennington v Wigan Council

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02 September, 2020

Chris Booth
Partner and Head of Insurance

The facts

The Claimant alleged that on 25th September 2015 at around 7.30pm he was out walking his dog with his brother. As they were walking along a footpath/alleyway in Pemberton, the Claimant claimed that his foot hit a raised section of paving which caused him to fall and sustain a fractured 5th metatarsal in his left foot and soft tissue injuries to his left shoulder.

The Claimant brought a claim against the Defendant Local Authority. The Defendant admitted breach of statutory duty but put the Claimant to proof that the accident had occurred as suggested.

The Claimant relied on medical reports from an Orthopaedic Surgeon. The Claimant was initially examined by the expert in June 2017; 21 months post-accident. During that examination, the Claimant told the expert that he was still unable to work and had not been able to do any lower body exercises in the gym since the accident. The Claimant's own expert appeared to have doubts as to the veracity of the Claimant's alleged injuries, mentioning that the Claimant was limping at examination but was weight-bearing on the incorrect part of his foot.

The Claimant was re-examined by the same expert in December 2019, more than four years after his accident. Not only did the addendum medical report from that examination state that the Claimant was still incapable of returning to work or to the gym, but it confirmed that he had also required modifications to be fitted in his home (such as a rail to help him get up and down the stairs).

Forbes anti-fraud team were instructed which carried out detailed investigations into the claim. These investigations revealed that the Claimant had in fact been working continuously since September 2016, contrary to his pleaded claim. Moreover, the Claimant was a scaffolder and roofer by occupation which cast significant doubt on his claimed requirement for a rail to be fitted in his home to assist him on the stairs. Despite the claim that he hadn't been able to do lower body exercises in the gym, we unearthed three videos from his social media accounts which showed the Claimant bench pressing heavy weights with the soles of his feet in December 2017 and in February and March 2018).

Part 35 questions were raised with the Claimant's medical expert referring to the three videos which showed the Claimant bench pressing weights with his feet. The expert agreed that those exercises were entirely inconsistent with the Claimant's condition as indicated to the expert by the Claimant on examination. The Claimant's medical expert agreed that if the Claimant was as injured/disabled as he claimed to have been, then he should not have been able to do those exercises casting significant doubt on his claimed injuries.

Our findings were collated into an extensive witness statement provided by our data analyst. After exchange of witness statements, having had sight of the Defendant's witness evidence, the Claimant dismissed his solicitors saying that he had instructed new solicitors.

Despite this, no notification was received from new solicitors. It was apparent that the Claimant had not retained new solicitors and from that point onwards, the Claimant declined to participate in his own action and refused to correspond with either the court or with our litigation team. As a result of his inaction, the case was struck out. This however was a case where the application of qualified one-way costs shifting (QOCS) meant that the Defendant was out of pocket for the cost of defending a claim considered to be bogus and/or exaggerated.

We made an application to the Court for a finding that the Claimant and/or his claim had been fundamentally dishonest pursuant to section 57 of the Criminal Justice and Courts Act 2015, or pursuant to CPR 44.16, or both and that QOCS ought therefore to be dis-applied.

The Claimant, despite being informed on numerous occasions of the hearing date, declined to attend the court hearing and in his absence the Defendant's Application was successful, the Court finding that the Claimant and his claim had been fundamentally dishonest. The Claimant's costs protection through QOCS was overturned and he was ordered to pay significant costs.

Forbes comment

This is a fantastic result for the Defendant. It sends out a clear message to the Claimant and any associates thinking of bringing claims that claims are scrutinised robustly, and that evidence is amassed meticulously.

For more information contact Chris Booth in our Insurance department via email or phone on 0161 918 0002. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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