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Fundamental dishonesty - can inconsistencies in evidence be excused by blaming solicitors or doctors?

Throughout the course of litigation, inconsistencies in a claimant's, or a defendant's, evidence may crop up. Often, parties may lay the blame for any inconsistencies in their evidence at their solicitors' or their medical experts' doors. But do these excuses really wash with the court? 

I recently appeared in Nazanin Esmaili and Sara Abraha v Romanas Sestakovas and UK Insurance Limited (2018), where DJ Hugman was confronted with this issue.

 

 

The facts 

The Claimants claimed that they were involved in a road traffic accident on the 13th December 2016 along the A4020 Shepherd’s Bush Green, London. They claimed that the First Claimant’s vehicle was shunted by another vehicle from the right-hand side. This accident allegedly caused both Claimants to sustain a number of injuries. The driver of the other vehicle, the First Defendant, had an insurance policy with the Second Defendant. However, it later came to light, following the accident, that he had never resided at the address he had provided on the inception of the policy. Further investigations revealed that he was not a resident of the United Kingdom and he was not contactable. Consequently, the First Defendant took no part in defending the claim. The Second Defendant did not accept that the accident happened as alleged and/or at all, and disputed the claims for personal injuries.

 

Decision

DJ Hugman did consider that the accident had happened. However, when turning to the personal injury aspect of the claim, he noted that the Claimants reported their injuries inconsistently. DJ Hugman stated that their evidence could be described as being “all over the place”.

DJ Hugman noted that First Claimant’s oral evidence appeared to diametrically oppose the contents of her Claim Notification Form ("CNF"). The First Claimant had, for example, alleged that she had attended the Accident and Emergency department of a local hospital directly following the accident. She further claimed she had been subjected to a CT scan. However, the First Claimant’s CNF denied that she attended hospital after this accident. Further, there was no evidence in her medical records of her having ever attended hospital at the relevant time.

Both Claimants also gave different accounts of the extent of their injuries to medical and legal professionals. The First Claimant had informed her physiotherapist that in addition to whiplash injuries, she had suffered injuries to her arms, hands, feet and legs. Those additional injuries were not discussed with her medical expert, nor her solicitors, despite the First Claimant claiming on oath to have suffered with those injuries for some years. 

The Claimants claimed that the errors and inconsistencies in their evidence was the fault of their medical experts and their solicitors. DJ Hugman refused to accept this. He found that the Claimants had treated their factual evidence in a way that was wholly inconsistent with either of them having a genuine belief in their injuries, and this was deemed inadequate and unacceptable.

DJ Hugman went on to consider recent cases concerning fundamental dishonesty, including Molodi v Cambridge Vibration Maintenance Service [2018] EWHC 1288 (QB) and Richards and McGrann v Morris [2018] EWHC 1289 (QB). He considered the facts of this case were similar to both Molodi and Richards, subsequently finding that both Claimants were fundamentally dishonest. QOCS were disapplied and both Claimants were ordered to pay the Second Defendant’s costs. However, DJ Hugman considered that as the First Claimant had established that her car had been involved in an accident, he allowed her vehicle repairs, thus her fixed costs were also awarded.

This case highlights that courts are reluctant to accept that medical experts and solicitors are wholly at fault for inconsistencies in evidence. Litigants must consider their evidence carefully when signing statements of truth, or having them signed on their behalf, to avoid being found fundamentally dishonest.

Dominique Smith acted for UK Insurance Limited.

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