A quarterly review from Greenwoods Issue 18: August 2011 INTRODUCTION

FRAUD

Review

A quarterly review from Greenwoods Issue 18: August 2011

Personal Injury l Property & Construction l Insurance l Commercial & Financial Risks l Fraud l Health & Safety l Motor Prosecutions Greenwoods’ Counter Fraud Group works to prevent

fraudsters capitalising on illegal activity commonly involving road traffic accidents. Our specialist teams, based across the country, have in-depth knowledge and experience of defending all aspects of such claims, including personal injury, bogus passengers, credit hire exaggeration and falsified damage. We also work to combat fraud rings and our intelligence team has access to high quality modern databases enabling thorough analysis of parties and companies alike.

We consistently provide the highest standard of service to our clients and our focus is always that of our clients’ best interests.

An emerging area of action in fraudulent cases is that of the Tort of Deceit. We are delighted in this edition to feature an article from leading fraud counsel, Brian McCluggage, who, together with Greenwoods, is working hard in pioneering this field to ensure that, following defeat of a fraudulent claim, the perpetrators may be brought to account for their behaviour.

INTRODUCTION

In this issue - Introduction

- The Tort of Deceit - What is it and how can you use it?

- Some of our recent successes to illustrate how to approach different forms of suspicious claims. - Defending induced/staged collisions. - Defending low velocity impact

claims.

- Exaggeration of Losses.

- The counter fraud group expands to Southampton.

- Intelligence update - Greenwoods’ Intellect Seminars

- Pre action inspection applications and non party disclosure applications

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The Tort of Deceit – what is it and how can you use it?

An insurer is always encouraged to settle claims early: it cuts down on court proceedings and so saves costs. But what if sums have been paid out before much investigation, and only afterwards is good evidence of fraud discovered? That is the classic scenario where the tort of deceit might be used to recover these sums from the fraudster third parties.

Some confusion sometimes arises about what “tort of deceit” actually means.

The tort of deceit is a cause of action, just as negligence, nuisance or a breach of statutory duty. The word “tort” is most easily understood as meaning a civil wrong. When a negligent car driver causes an accident that is a “tort”. The word is rarely used in that context. Lawyers tend to use the word “tort” with “deceit” so that a reference to deceit is understood in the sense of the formal legal cause of action rather than a more general or loose reference to fraud or deception.

Deceit as a cause of action in an insurance context practically requires the following conditions to be satisfied:

a. A representation by the fraudster with the intention that the insurer should act upon it.

b. That the insurer is induced by the representation to act to its loss.

c. That the representation is false.

Sounds complicated? Not really. A third party’s solicitor writes a letter saying that a road traffic accident has occurred and the third party suffered injury. The insurer pays £1,000 to the third party for a whiplash injury assuming that the accident happened. It is later shown that the accident was invented.

In practice, the insurer will usually be the claimant in a fresh court action, but sometimes might counterclaim in existing proceedings. The defendants will be all those who have made the representations with knowledge that they were untrue, which may include the insured as well as the third party.

It is vital for the evidence to be strong in an action in deceit, as the insurer (as claimant) bears all burdens of proof and will be calling its evidence first. The defendant might choose not to give oral evidence – if so, would the insurer have enough to persuade the judge without the benefit of a defendant undermined by cross-examination? My recommendation is that deceit should not be considered unless you have evidence that shows the third party is “bang to rights” on the evidence. Whether that be so, of course, is a delicate question of judgement. An action in deceit, if lost, will give rise to a large costs order in the defendant’s favour, often far exceeding the monies sought to be recovered by the insurer claimant. For that reason, early and experienced advice is required, from a firm like Greenwoods, with the assistance of experienced counsel. If you are going to do it, it must be done right.

cont’d

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McLean and others v Beercellars UK Ltd, Liverpool County Court

This matter involved an allegation by the claimants that the driver of the defendant company had reversed his vehicle at high speed into contact with the claimants’ vehicle. Not only did this contradict the medical evidence received, which stated the accident to have been a rear end shunt at traffic lights, but the driver’s mate in the defendant’s vehicle did not believe the accident to be genuine. He suggested the incident had been contrived between the parties. The driver was later dismissed from the defendant company for reasons of dishonesty.

Investigations were undertaken to determine the credibility of the parties and the circumstance. Direct links were found between the claimants and the driver. A visit to the car park where the accident was said to have taken place confirmed the circumstances as being implausible: essentially the suggestion that the defendant vehicle had been reversed at high speed 25 metres across the car park.

The discrepancies in the written evidence and the verbal testimony of the parties at trial lead to the District Judge dismissing all their claims. Costs were recovered from the claimants and the overall saving to our client was in excess of £60,000. Contact: Laura Kelly

E.lkm@greenwoods-solicitors.com.

Arshad Mehmood, Sakander Mehmood, Haroon Mushtaq v Ivan Lakatos & Zenith Insurance Plc

The initial concerns in respect of this accident were that it occurred within four days of the policy inception. Further investigations indicated the insured

did not exist; had provided a false address; or simply was not willing to cooperate. We suspected the former. Part 18 questions were sent to the claimants to pin them down on their allegations and

documentation was requested to support their allegations of lengthy periods off work. The usual DPA requests were sent in respect of previous accidents but in this case it was all about the DVLA keeper history response.

The DVLA keeper history responses for both vehicles showed that the current owner of the insured vehicle lived at an address on the Wirral (incidentally the current owner was not the insured) and the original owner of the claimant’s vehicle previously lived at the same address. Whilst their occupation was separated by a couple of years it was a remarkable coincidence. The claims were repudiated and the claimant’s solicitors later confirmed all three files were closed. Estimated saving £21,000.

Contact: James Mansell

E.jcm@greenwoods-solicitors.com

Fiaz v Laindon, Bow County Court

The claimant alleged that the defendant’s agent had collided with the rear of the claimant’s Mercedes. The vehicles were proceeding along Stanford Road, Grays. Based on the surrounding circumstances there were concerns that the claimant had braked suddenly in order to induce a collision, using a decoy vehicle. Following an interview with the insured we amended the defence to make a positive pleading of fraud. Following this the claimant’s solicitor applied to come off record.

The claimant’s insurer advised that indemnity was reserved but agreed to meet the defendant’s

counterclaim for vehicle damage and fixed costs of doing so.

We then applied for an Unless Order requiring the claimant to file a Notice of Intention to Proceed. The claimant failed to comply with the requisite order and judgement for the defendant was entered.

The claimant’s solicitors applied to come off record and the two pre-litigated claimants ceased to pursue their claims.

Estimated saving of £41,300. Contact: Susan Lane

E.sml@greenwoods-solicitors.com

Muhammed and Sarwar v Piercy, York County Court

The defendant was convinced that he had been set up by the claimants, who he suggested, with the assistance of an unknown vehicle, had induced the accident. The accident occurred on a motorway when an unknown third party vehicle pulled out into the path of the claimants’ vehicle, causing them to swerve into the path of the defendant’s truck. It wasn’t clear at first how far we could proceed with the defence as it was initially the defendant’s word against the claimants’. However, a lengthy claims history was established, together with serious discrepancies in medical evidence: for example an amendment was made to one report shortly after our client’s witness statement had been served, so that the circumstances no longer contradicted each other. Claimants’ witness statements taken one month apart contained totally different versions of events. DPA requests were followed up with other insurance companies and ultimately a witness statement from

SOME OF OUR RECENT SUCCESSES TO ILLUSTRATE HOW TO APPROACH DIFFERENT FORMS OF

SUSPICIOUS CLAIMS

DEFENDING INDUCED/STAGED COLLISIONS:

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Used correctly, there are major benefits:

a. A judgement against the fraudster and recovery of monies, subject to successful enforcement. b. A message both to the individual fraudster and his

local community that there is payback for fraud.

c. The insurer may gain reputation as a ‘tough’ insurer with fraudsters moving to easier targets. d. Good potential for local news coverage. In Direct Line & ors v. Suleman & ors (2010), seven insurers gained judgment worth £400,000 (including

exemplary damages) against 50 defendants involved in a fraud ring. That certainly showed that fraud didn’t pay.

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another firm of solicitors who were dealing with a claim for the same two claimants was disclosed to us. This statement was written by the first claimant in this case and admitted that the claim presented by the second claimant was fraudulent (in the other case, not ours). We immediately disclosed this and in the light of objections from the claimants’ solicitor we filed an application to rely upon it. We pursued the allegations that the claimants were clearly dishonest and had an explicit history of dishonesty.

Various proposals were then discussed including a Calderbank offer from the claimants to settle their claims for £8,000, inclusive of costs. Based on the strength of the evidence, we rejected this. The claimants’ solicitor then invited us to settle the first claimant’s claim if the second claimant’s was withdrawn. We rejected this emphasising that the two claimants were inextricably linked.

We established that the claimants had no obvious assets, and that if we succeeded at trial the ATE insurers would withdraw funding on account of their clients’ dishonest actions. The chances of recovering the costs of the Defence were very slim, therefore, commercially it was considered that a drop hands settlement would be the most favourable for our client.

The claimants agreed and both claims were discontinued with no order as to costs. Although we did not obtain a final finding of fact, the actions of the claimants spoke for themselves.

Estimated savings to client £40,000 Contact: Laura Kelly

E.lmk@greenwoods-solicitors.com

Hussain v Akhtar, Birmingham County Court

The suggested circumstances of this accident were that the defendant drove from a side road into the path of the claimant’s vehicle, which was travelling on the main road. Initial concerns in this matter were that the nine claimants involved presented different versions of events. Some saying they were hit in the rear, some saying the third party had emerged from a side road.

There were other inconsistencies in the medical reports and the third party driver had another pending claim where there was also a high number of claimants and where the circumstances mirrored

those of this accident.

The suggested location of where the damaged vehicles had been stored transpired to be a kebab shop. Part 18 questions were put to the claimants to clarify their evidence.

Initially only one of the claimants had litigated and following his failure to comply with court directions we filed an application to strike out his claim. This was successful. A second claimant issued proceedings, but these were discontinued almost immediately. The other claims were withdrawn.

We had put pressure on the claimants’ solicitors and revealed our evidence early so they knew the weaknesses in their case, which lead to those claims essentially being defeated.

Savings to the client £83,550. Contact: Gareth Brazier

E.gpb@greenwoods-solicitors.com

Salem, Errington, McKeith and Kennedy v Salem and Zenith Insurance, Newcastle-Upon-Tyne County Court

Eight claims were brought for personal injury, vehicle damage and associated losses allegedly arising from a road traffic accident that occurred on 6 July 2009. The case was referred to us because the insured would not cooperate with investigations, multiple claims were made and all of the parties were unemployed. The four alleged passengers from the insured's vehicle issued proceedings. Indemnity was withdrawn and Zenith Insurance was added as a second defendant. Having carried out initial database searches it became apparent that most of the claimants had been involved in numerous accidents including one claimant who had made an employer's liability claim six days prior to the alleged road accident and had failed to declare this to the medical expert. After submitting numerous DPA requests to the various compensating insurers we were sent a full copy of one insurer’s file regarding an accident that allegedly took place on 8 February 2008. This evidence was significant because it showed that two of the third party passengers and one insured passenger had been involved in an accident together previously.

Strangely the claimants responded to our Part 18 request, admitting knowing the occupants of the other

vehicle but on the premise that it was not unusual as the accident occurred in a relatively small town where they all lived. Further analysis of the previous accident, which the insurer had settled, showed the witness questionnaires purportedly written by a third party matched the handwriting of a third party passenger in the index accident and the statements by the insured in his various responses to the insurer were inconsistent regarding who was in his vehicle. A third party passenger was also noted to live with a relative of one of the insured’s passengers in the index accident.

Once investigations were complete we successfully applied for permission to amend our client’s defence to include allegations based on the evidence we had uncovered. Following service the claimant's solicitors applied for permission to come off record. The claimants subsequently failed to comply with directions and the claims were struck out with an order that they pay our client's costs. A copy of the defence was served on the four non litigated claimants and their solicitors subsequently closed their files. Saving to client £60,000.

Contact: James Mansell

FRAUD

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Ali v Ahmed, Clerkenwell and Shoreditch County Court

The claimant alleged that he was crossing the road when he was hit by a motor vehicle being driven by the defendant.

The defendant admitted colliding with a pedestrian, however, denied that it was the claimant in these proceedings. The defendant was adamant that he had not struck two pedestrians. The admitted claim was settled, but a defence was raised in respect of the second claim. It was specifically denied that this claimant was present at the accident scene. Investigations revealed numerous inconsistencies in the claimant’s witness evidence, for example, that:

the friend who had been hit by the car had •

broken his leg. This was not the case: he had sustained whiplash type injuries

the defendant had not stopped at the accident •

scene, when in fact, it was the defendant who called the emergency services

his medical evidence contradicted his witness •

statement as to the treatment he received, and contrary to his suggestion that he and his friend were taken by ambulance to hospital, there was no ambulance record of him. The hospital notes revealed he was a self-referral

his GP records did not support his suggested •

attendance there

in spite of a suggestion that he had to take six •

months off work, no proof of this was forthcoming

Interestingly, at trial the District Judge found that the claimant had been at the scene and that he had been

hit by the defendant’s vehicle. However, he also found that the claimant had grossly exaggerated his injuries and that the person who had presented for medical examination, exhibiting objective signs of injury, was not in fact the claimant. The medical expert was exonerated from any involvement in the deceit.

The claim was dismissed and costs awarded to our client.

Saving to the client £30,000 in addition to costs being recovered in full.

Contact: Abigail Lewis

E. ajl@greenwoods-solicitors.com

EXAGGERATION OF LOSSES

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Abdelbari v Seymour, Doncaster County Court

It was admitted that an accident occurred between the parties but the defendant maintained it was of a very low speed and of insufficient force to cause the level of loss claimed. The claimant was claiming for fifteen months loss of earnings as a result of his injuries. He claimed ongoing back problems that prevented him from returning to work.

We obtained medical records, which suggested a significant history in relation to back symptoms and that the reason for his inability to work may have been due to either pre-existing symptoms or diabetes. Weighing up the litigation risk we made a Part 36 offer of £2,250, pending the claimant obtaining an orthopaedic report. We also successfully applied at this time to have the past loss of earnings claim struck out due to the claimant failing to plead the amount claimed or serve any evidence to support it. The claimant had not informed the first medical expert of any back symptoms yet reported significant symptoms to the second expert.

We also noted that the claimant was out of the country for significant periods which cast doubt on whether he would have worked in any event.

In view of this, we questioned the expert who accepted that back symptoms were not accident-related and that any loss of earnings or care would be limited to three months post accident.

We allowed our original Part 36 offer to be accepted out of time, which meant we were entitled to our costs from 14th May 2010. The claimant’s costs are limited.

Benefits from the DWP were claimed in the sum of £9,588 but we successfully appealed these as the benefits claimed were not accident related. Saving to the client £40,099.93

Contact: Susan Lane

E.sml@greenwoods-solicitors.com

Theophanous v Lyall, Hertford County Court

The claimant brought a claim for personal injury, vehicle damage and hire, along with the other usual associated losses. However, the defendant insisted that whilst she admitted colliding with the claimant’s vehicle, having skidded on an icy day in February 2010, her speed was only 5mph or less and that the only damage was a small scratch to the rear of the claimant’s vehicle. This contrasted with the claimant’s allegation that he only just made it home in his vehicle

when he noticed that smoke was pouring in to the car and the boot would not open.

Attempts were made to inspect the claimant’s vehicle. However, he alleged the hire company took the vehicle away along with the V5 document. The hire company then told us they sold it to a friend of a friend who sold it for parts. Despite the claimant saying he no longer had the vehicle he remained the registered keeper and had declared the vehicle SORN three months post accident. This simply added to our credibility argument. Part 35 questions were put to the medical expert who, although in the claimant’s favour where possible, admitted that if the defendant’s version was true then he expected any injury to resolve within two to three weeks instead of the 12 months if the claimant’s version was correct. Based on this and that it was admitted some, albeit limited, damage was caused to the claimant’s vehicle, an offer was made for £1,500. The hire claim was repudiated in full. The claimant accepted the offer. A saving of £10,500 was made on damages with a significant costs argument to follow.

Contact: James Mansell

E. jcm@greenwoods-solicitors.com

DEFENDING LOW VELOCITY IMPACT CLAIMS

INTELLIGENCE UPDATE

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As part of our ongoing developments, our intelligence database has also recently been upgraded to encompass further technological sophistication, together with data augmentation. Various datasets have recently, and continue to be, added to our

database, allowing us to have as wider view as possible in terms of counter fraud data. This data in turn allows us to quickly identify matched entities and the opportunity to drill into the key elements.

Our robust IT platform together with our ISO 27001 accreditation provides our clients with confidence in data security and pioneering technology.

INTELLIGENCE DATABASE

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Recruitment

Greenwoods’ Intelligence Services have recently reinforced the team of experienced analysts with the addition of two new team members.

Our new colleagues are: Tara Smith who joins us as an analyst from the Independent Police Complaints Commission (IPCC).

After leaving university Tara worked for the Motor Insurers Bureau as a trainee claims handler. She then joined Thames Valley Police as a Crime Researcher where she assisted the Crime Analyst with identifying crime patterns, crime hotspots and assisted with the

production of National Intelligence Model products. She then became a crime analyst where she produced tactical and strategic products as well as being responsible for identifying any patterns within street robberies and assisting officers in identifying the offenders, analysing the drugs market, identifying key player, areas of escalating conflict and key targets to disrupt the market.

At the Independent Police Complaints Commission, Tara was responsible for providing analytical work for Independent Investigation. These included the investigation into Ali Dizaei, PC Ballard, DC Coleman-Farrow and the death of Ian Tomlinson (G20). Tara’s addition to the intelligence team will bolster our ability to see the bigger picture and hone in on the key

elements of fraudulent activity.

Mike Tuffin joins our intelligence department as the new technical manager. Mike was previously employed at a leading law firm within their Intelligence Services as the deputy technical manager. He has over seven years experience of working within the fraud and intelligence field and has designed and developed new IT systems, and training and development packages for both internal and external clients. Mike joins us at a crucial stage of further development, and his expertise will greatly assist in the training and expansion of our new investigation systems, which will benefit everyone we work with.

As many of the cases cited above illustrate, intelligence is often the key not only to uncovering fraudulent activity but also to shaping tactics, particularly avoiding pyrrhic victories where there is little or no prospect of recovering costs. The sooner high quality intelligence can be deployed, the sooner decisions can be made. That is why Greenwoods' fixed fee Intellect and IntellectPlus services are proving to be increasingly popular with clients, with positive feedback that the

information we are providing is making a real difference to their decision making processes. We continue to develop and enhance these products not only by recruiting additional experienced analysts into the intelligence team but also by ensuring that our systems are state of the art and populated with the most up to date information available from wholly ethical sources.

We are confident that in the future we will be able to improve even further on the speed and quality of the intelligence service available to clients, providing them with vital information to assist in the early detection and response to suspected fraudulent claims. For further information, please contact: David Booker

E.davidb@greenwoods-solicitors.com

GREENWOODS’ INTELLECT

THE COUNTER FRAUD GROUP EXPANDS TO SOUTHAMPTON

the Counter Fraud Group into its new Southampton office, which reports into Karen Mann.

Jonathan Head who is based in the Southampton office is a Fellow of the Institute of Legal Executives and is currently studying for the LPC part time. Jonathan is a member of the FOIL sector focus team on first party fraud. The Southampton Counter Fraud Group has a particular interest in policyholder

complicity, and third party exaggeration. Recent successes include:

obtaining orders for extensions of time for •

decisions on liability under the RTA Portal whilst vehicles are examined

securing judgements for repayment of insurer •

outlays against policyholders complicit in fraudulent claims

identifying and successfully repudiating claims •

based upon fraudulently prepared hire and other invoices

For further information, please contact: Jonathan Head

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Greenwoods holds a series of training events for both our lawyers and interested clients. Below are those events being held in the next few weeks. If you would like to attend either or both of the seminars please email crm@greenwoods-solicitors.com, indicating which you are interested in attending.

Seminars

Other Greenwoods publications

Greenwoods produces a number of regular publications on various topics, namely: PERSONAL INJURY ALERT (Weekly)

PROPERTY, CONSTRUCTION & INSURANCE REVIEW (Monthly) MOTOR CRIME FOCUS (Quarterly)

H & S REVIEW (Quarterly)

MARINE INSURANCE REVIEW (Quarterly)

If you would like to subscribe to any of the above publications, please email crm@greenwoods-solicitors.com, indicating which you would like to receive.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Greenwoods is a firm of solicitors regulated by the Solicitors Regulation Authority in England and Wales. You can access the rules which regulate our professional conduct at: www.rules.sra.org.uk

© Greenwoods Solicitors 2011

PRE ACTION INSPECTION APPLICATIONS AND NON PARTY DISCLOSURE APPLICATIONS

Date Time Location Speaker(s)

24 November 2011 16.30-17.30 57 Spring Gardens Matthew Snarr

Manchester M2 2BY 9 St Johns Street

GREENWOODS’ FRAUD HOTLINE:

fraud@greenwoods-solicitors.com

This dedicated email account is designed for you to email any ad hoc queries you have. Emails will be directed to the Counter Fraud Group who will respond within 24 hours. We hope that this service will be of use and look forward to hearing from you.

For further information please contact:the author Laura Kelly on E.lmk@greenwoods-solicitors.com or Karen Mann on E.km@greenwoods-solicitors.com

We are always happy to take on basic intelligence searches should prospective or existing clients wish us to assist. Please do not hesitate to contact one of the team if you would like our assistance, in this, or any, matter.