£8k in costs awarded in fundamental dishonesty ruling
The courts ruled a finding of fundamental dishonesty against a director of BR Motors Services Ltd resulting in our insurer client being awarded £8,000 in costs.Read more
Following a road traffic accident, the claimant, Mr. Kadir, pursued a claim for damages and costs worth £10,000. Following investigations by Flint Bishop and our insurer client, the claim was successfully defended at trial. All heads of loss were dismissed, and Mr. Kadir was ordered to repay an interim payment of £1,980 and costs of £4,887.
Mr. Kadir was allegedly involved in the road traffic accident on 20 August 2017 whilst driving an Audi A3 on Devonport Road in Blackburn. Liability for the accident was admitted, however, our insurer client had issues with aspects of the claim including a concern that Mr. Kadir was not in fact the driver involved in the accident and he was acting as a substituted driver.
There were a vast number of inconsistencies in Mr. Kadir’s claim including the weather conditions at the time of the accident, the nature of his injuries, medical attention sought, and time off work following the accident.
The trial proceeded in the County Court at Manchester on 07 June 2021 before District Judge Iyer. Mr. Kadir was robustly cross-examined by our barrister, and given the numerous inconsistencies in Mr. Kadir’s claim throughout the history of the case, it is perhaps unsurprising that he came across as a very poor witness.
Mr. Kadir’s case was so poor that his barrister made an offer to discontinue the claim on a drop-hands basis after Mr. Kadir had been cross-examined. The claimant’s offer was rejected.
District Judge Iyer considered the case carefully including the possibility that Mr. Kadir’s memory may have diminished with time but ultimately found him to be wholly unreliable.
On the issue of whether Mr. Kadir was the driver or not, the Judge heard verbal evidence from Mr. Kadir and our witness, the insured driver, Mr Patel. The Judge found that Mr. Kadir was not the driver in the accident.
The Judge heard evidence about whether Mr. Kadir was actually the driver of the third-party vehicle. It was conceded that the driver had given details of someone (a Mr. B) not involved in the accident but who lived nearby. The Judge found that there was no plausible explanation of why Mr. B’s details would have been used at the accident scene. Mr. Kadir said that he was intending to visit Mr. B and that Mr. Kadir had called Mr. B from the scene and Mr. B had consented to his details being used. Mr. Kadir went on with his explanation saying that Mr. B had an internet account and that pictures used in the claim may have come from this. The Judge found this implausible and Mr. Kadir failed to explain why he could not have used his own email account in the claim or provide his own details at the scene.
The Judge made secondary findings about Mr. Kadir’s injury claim. The Judge was less than impressed with the way in which Mr. Kadir’s evidence evolved through the life of the case. The Claims Notification Form prepared at the outset of the case lacked any meaningful detail. Documents prepared several years later, when a person’s recall of events may have faded, had in comparison, a greater level of detail about the road and weather conditions. This also seemed to run against the number of times Mr. Kadir could not recall basic facts about the accident during cross-examination.
In finding Mr. Kadir to be fundamentally dishonest, the Judge noted the following issues with his evidence:
The trial became more interesting when Mr. Kadir conceded that Mr. B could not actually drive and the Judge had it in mind that one possible explanation of Mr. B’s details being used and Mr. Kadir being put forward as the driver was that it was indeed Mr. B who was driving illegally having no licence and that Mr. Kadir had stepped in to avoid any possible issues due to Mr. B being behind the wheel illegally.
Turning to the injury aspect of the claim, the Judge noted that there were a vast number of errors made by Mr. Kadir. There were errors about the injuries. The witness statement and medical report referred to one shoulder being injured, and in evidence at trial he insisted that the other shoulder was injured. Furthermore, Mr. Kadir said he had no recollection of seeing the doctor and the expert. Yet his witness statement said he saw his GP. The medical report was based on him having seen the GP. Mr. Kadir did see the GP about other matters but at no point did he mention the accident-related injuries. The recorded comments in the GP notes were inconsistent with what he told the expert and the court about his gym and weight training. Mr. Kadir told his GP that he did go to the gym in December 2017 only a few months after the accident, yet this was contradicted in other evidence.
There were also inconsistencies about the impact of the accident on Mr. Kadir’s life. In the Claims Notification Form it was said that Mr. Kadir took no time off work, yet he told his medical expert that he took two weeks off work. Despite the alleged absence from work, Mr. Kadir made no loss of earnings claim nor did he provide any evidence from his employer to substantiate his time off work. Mr. Kadir’s evidence changed yet again when he was cross-examined and he said he was unable to work for four months.
There were also inconsistencies about the weather and road conditions. In the Claims Notification Form, the weather and road conditions were “unknown”. Yet by the time of Mr. Kadir’s witness statement produced over three years after the accident he was able to provide much more detail about the weather and road conditions.
Paul commented on the case:
“We often see alleged phantom passengers in the fraud arena, but rarely are drivers found to be substituted in an otherwise ‘genuine’ collision. The insurer client stood strong with me given the evidence we had presented in this case coupled with the claimant’s woeful verbal evidence and ultimately, we got the desired result. Mr. Kadir wasn’t afforded the opportunity to just walk away without consequence and I suspect he will now think twice before doing what he did in this claim ever again.”
Anthony Carrington, Partner and recently appointed Head of Fraud at Flint Bishop said:
“This was Paul’s first trial at Flint Bishop and to have started with a fundamental dishonesty outcome is amazing. Paul expertly gave our insurer client advice on offers to discontinue the claim through trial, and I am glad to see his experience and confidence in the evidence led to this fantastic decision for our insurer client.
The claimant has pursued this claim since 2017 in the hope that the insurer would just pay up, but this case shows that with good claims handling, these sorts of fraudulent claims can be defended.”
For more information about this case or how our Insurance Litigation team defends insurers and self-insured organisations, please contact us on 01332 226 109 or complete the form below.
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