Forbes at Trial - Not fundamentally dishonest, but claimants' claims virtually wiped out.

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02 September, 2020

Chris Booth
Partner and Head of Insurance

Forbes recently acted for the defendant in the matter of Ashley Stapleton and Jordan Stapleton v The Co-operative Group Ltd, a contested claim arising out of a motor accident in October 2015 01/10/2015 on Sheepscar Street, Leeds.

The 2 claimants alleged that the Co-op's HGV went into the back of their vehicle at traffic lights. Conversely the defence was that the claimant driver had cut in front of the HGV at the lights and did not leave sufficient room to enable him to stop.

The Co-op's driver took photographs at the scene which showed the HGV situated in its lane and showed the claimant driver's vehicle straddling two lanes. They contended that the photographs supported their driver, and the claimant driver's insurance company agreed, dealing with the Co-op's outlay on a without prejudice basis.

Despite this the claimant driver and passenger pursued their claims and eventually issued proceedings.

By the time proceedings had been issued the defendant's driver had returned to his native country so his evidence could not be obtained. Instead a statement was obtained from The Co-operative Group Ltd's transport manager who had filled out the accident report with its driver. The transport manager also exhibited the photographs taken at the scene.

On receipt of instructions, we were concerned by the allegation that the claimant driver had cut in front of our client's vehicle therefore fraud enquires were undertaken. Enquiries revealed that the claimant driver had an extensive accident history and the index accident was his 3rd RTA in 15 months. The enquiries also revealed that both claimants had previously done jail time for a mixture of drug, firearms and theft offences.

Both occupants of the third party vehicle made personal injury claims, and the driver also claimed significant special damages in the form of £11,047.20 credit hire, £1,126.80 storage and recovery, £1,025 pre accident value of his vehicle and £2,570.58 for the increase in his insurance premiums since the accident.

Due to the concerns about the accident circumstances the decision was taken to fight the claims, notwithstanding the uphill struggle given that the defendant's driver was not available to provide evidence. Fundamental dishonesty was not pleaded as there was insufficient evidence to do so. Instead the claimants were put to proof of the accident circumstances and, importantly, as to their injuries and losses. There were a number of concerning discrepancies in the reporting of their injuries by both claimants.

The matter proceeded to trial on 23rd March 2020 at Skipton County Court before DDJ Rafferty. Judgement was reserved and was formally handed down on 7th August 2020.

In his judgment, DDJ Rafferty concluded:

That the Claimants succeeded on liability largely because the defendant driver was not able to give evidence directly.

Both injury claims were dismissed due to the numerous discrepancies in how both claimants had reported their injuries, however the trial judge stopped short of making a finding of fundamental dishonesty.

The driver's claim for vehicle hire in the sum of £11,047.20 was dismissed in its entirety as he has failed to establish a need for hire. Crucially, we had established that the Claimant had not purchased a replacement vehicle until a number of years after the accident.

The driver's claim for additional insurance in the sum of £2,570.58 was dismissed. We had obtained disclosure of the Claimant's bank statements as part of his disclosure due to the credit hire claim. The statements did not show any payments being made in respect of his insurance premiums. He attempted to explain this by saying he used his sister's bank account to pay his insurance but could not explain why.

The driver's claim for storage and recovery in the sum of £1,126.80 was dismissed as, despite our detailed enquiries on the point, he could not produce an agreement showing that he was required to pay the charges. Furthermore, the judge accepted our submissions that there was no need for him to have kept his vehicle in storage and that the vehicle could have been kept on his drive.

The only item of damages awarded to him was his pre accident value in the sum of £1,025 which was not in issue.

The passenger's claim was dismissed in its entirety.

Forbes Comment

In a recent case of Pegg v Webb the High Court overturned a first instance decision not to find fundamental dishonesty when the claimant had not been able to prove his injuries. However, in that the case the lower court judge made findings such that the High Court said "no judge could reasonably have failed to have come to the conclusion that the claim for damages as presented by the Claimant in this action was a fundamentally dishonest one, perpetrated by fundamentally dishonest accounts". Contrast this with the current claim. The judge here made considerable allowances for the passage of time in affecting both claimants' memories of events in deciding that they were not dishonest, but rather, confused in making inconsistent statements at trial. However, running the matter to trial was justified in relation to our concerns, and those of our clients, on causation.

It is still worth defending such claims even with the associated costs, as a saving in claimed damages of almost £18 000 was made.

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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