Are There As Many 'Fundamentally Dishonest' Personal Injury Claims As Believed?
- AuthorKay Ditcham
Compensation for whiplash claims will soon be limited after a proposal was passed by Parliament. Tilly Bailey & Irvine's North East solicitors explain how 'fundamentally dishonest' Personal Injury claims were the reason...
I previously wrote about the proposals to limit compensation payable in whiplash claims - Could 'Unfair' Proposals Affect Road Traffic Accident Victims? - which unfortunately have been passed by Parliament and will be introduced from next year.
This legislation came about as a result of pressure brought to bear against the government by the insurance industry, which asserted that many of the claims were fraudulent in that they were either totally fabricated or exaggerated. At Tilly Bailey & Irvine we remain of the view that this suggestion cannot be substantiated. In our experience the vast majority of Claimants are people who have been injured through no fault of their own, and are entirely honest about the circumstances and effects of that injury upon their lifestyle.
Under the new regime it is no longer necessary for the insurers to show that a claim has been fabricated; it is sufficient for them to establish that, some, often minor, part of the claim has been exaggerated.
The insurers have a lot to gain if they can persuade a Judge that a claim is ‘fundamentally dishonest’.
In the normal course of events, if a Claimant is unsuccessful they are not required to pay the insurer’s costs. However, if a claim is found to be fundamentally dishonest, a Claimant will lose this protection and may be ordered to pay some or all of the Defendant’s costs. In addition, and much more seriously, they can also be committed to prison.
We have seen an increase in insurers making allegations of fundamental dishonesty against Claimants, even to the extent of bringing committal proceedings.
We recently defended such a claim for a young man who had brought a personal injury claim for the injuries he sustained in a road traffic accident. His insurance company had appointed solicitors for him who were not local and with whom he had no face-to-face contact, until the day of the trial. Unfortunately, at the trial, the Claimant was unsuccessful because there were inconsistencies between the evidence he gave at Court on the day and what was stated in the medical report he had previously filed. Because of this, the Defendant applied for a finding of fundamental dishonesty and also brought committal proceedings.
The Claimant struggled to find solicitors to represent him in relation to those proceeding and by the time he came to Tilly Bailey & Irvine, a number of firms had already refused to act. We agreed to represent him, believing that he had not been dishonest and did not deserve to be committed to prison. It was not a straightforward matter and required the input of our specialist Personal Injury lawyers, working alongside our Criminal Defence Team. Fortunately, the application to have him committed was ultimately dismissed at Court, for which he was extremely grateful.
We believe that the client in this instance had not been dishonest but rather had been naive, simply approving documents sent to him by his solicitors by e-mail, without properly considering them.
Had he instructed a local firm in relation to his original injury claim, he would have had the opportunity to discuss any issues face-to-face with his solicitors, which is important in ensuring there are no inconsistencies in his evidence, particularly in the current climate where insurers seem to be seeking findings of fundamental dishonesty whenever a Claimant is unable to prove their case.
We would suggest that you always seek the advice of a specialist local Personal Injury lawyer rather than allowing your insurers to appoint one. Our team can be contacted on 0333 444 4422 or visit our Personal Injury page.