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Was the Claimant Fundamentally Dishonest?

We will never know if the claimant in a recent claim we defended was fundamentally dishonest, but we certainly had our suspicions. And when his claim was struck out and he paid our client's legal costs in full it only reinforced our concerns.

We defended a claim brought by a local authority tenant who claimed that as he left his house, he immediately slipped on moss that he alleged had fallen off the roof and onto the floor. As a result of the slip, he alleged that he then fell into the wall and scraped his upper right arm/shoulder on screws sticking out of the wall.

Liability was denied on the basis that there was no duty to remove moss and other debris. His allegations included that a 'caterpillar' had been fitted by the council to his gutter which had come loose, which he claimed caused moss to then fall/be blown from his roof into his garden. Whilst the fitting of the caterpillar was accepted, it was denied that that had anything to do with moss being blown off his roof (the purpose of the caterpillar was to prevent the guttering from blocking, not to stop moss falling from the roof).

Aside from the liability defence, there were numerous red flags in terms of causation:

1. About two weeks before his own 'accident', the claimant emailed the council to inform them that his niece had slipped on moss on his garden path during a visit. He told the council that any future accidents would be "claimed for".
2. His Claim Notification Form claimed that he went to hospital on the same day that he had his accident but in the medical report it was reported that the claimant did not seek any medical attention. There were also no hospital records available, which too indicated that he did not go to hospital.
3. The claimant provided colour photographs of the injury to his arm which we sent to the claimant's own medical expert along with a Part 35 request. It was the claimant's pleaded case that he suffered injuries to his right arm/shoulder, yet the expert confirmed that he believed that the photographs showed injuries to the left upper arm and not to the right.
4. The medical report described three horizontal scars to the upper arm measuring 50, 30 and 5mm in length. The expert accepted that only two scars were shown in the claimant's photographs (with those being to the left and not the right arm in any event).
5. The expert believed that the photograph of the wall showed only one screw in situ in the wall and as a result was not able to describe a plausible mechanism (in respect of how the Claimant was able to suffer three scars).
6. The expert surmised that whilst a claimant forgetting about a visit to the hospital may raise few if any concerns about a claimant's reliability, the photographs that accompanied the Part 35 questions (showing the scars to the arm and the wall with screw sticking out) raised concerns about the reliability of the claimant's account as received by the expert at the consultation.

We made a decision with our client to defend that matter to trial on the basis of our liability denial and the real concerns about the claimant's credibility. We were intending to invite the court to make a finding of fundamental dishonesty and to thereby seek to overturn QOCS.

The claimant's solicitors came off record shortly after these Part 35 questions were supplied, and then the claimant failed to pay his hearing fee, so the matter was struck out less than a week before trial.

We were instructed to apply to get the matter reinstated in order to seek a fundamental dishonesty finding to enable a costs order to be secured in our client's favour.

Having made that application, the claimant then contacted us and offered to pay the council's costs which was accepted and the agreed sum was paid the same day.

Forbes Comment

We had concerns about the claim from the outset as did our client. We scrutinise all claims for any "red flags" that might suggest that a claim is not all that it seems, and to decide with our clients whether further investigations or enquiries are warranted. We work closely with clients to ensure that claims considered to be fabricated are robustly defended. That certainly paid off on this occasion, with the successful outcome on the claim, and our client's costs being met.

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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