Tripping over the facts

09 Apr 2015

Case against local authority sets legal precedent on the issue of Qualified One Way Costs Shifting as the court exercises limited right to disapply rule

Claimant trips up on QOCS

The claimant, Clare Howarth, pursued a claim for a highway tripping accident said to have occurred on Curlew Road in Oldham on 18 September 2013.

Investigation conducted jointly between BLM and Oldham Council identified a disproportionately high number of highway tripping claims at this location. It further identified links between claimants, all of whom were known to Clare Howarth as friends or family members. Five of the linked claimants also claimed to have suffered injury as a result of the condition of the highway on Curlew Road.

One of the additional five claimants was identified as the partner of Clare Howarth’s sister. He claimed to have fallen and suffered injury as a result of the same defect as the claimant.

Evidence obtained by BLM demonstrated collusion between the two claimants who had previously suggested that they were unaware of other accidents on Curlew Road.

Obstruction of proceedings

Proceedings were issued and the defence served pleaded the links between the claimants and asserted that the claim was fundamentally dishonest. The claimant was invited to serve a Reply to the Defence specifically responding to that issue. She failed to do so.

Subsequent enquiry undertaken by BLM identified reference to the claimant prospectively being the subject of an unspent conviction for fraud. The claimant was asked to comment and to provide further details of the offence, if relevant. Again she failed to respond. When Clare Howarth failed to serve witness evidence in accordance with the directions order of the court an application was issued by BLM with the assistance of Lucy Powis of Counsel to strike out the claim and to disapply Qualified One Way Costs Shifting (QOCS) on the grounds that the claimant’s conduct had obstructed the just disposal of the proceedings.

The court accepted our submission that, through her conduct, the claimant had prevented the defendant from investigating relevant lines of enquiry and therefore, as the court had been unable to hear oral evidence from the claimant, the evidential threshold required to satisfy the court that the claim was fundamentally dishonest could not be met. The court was satisfied that the claimant had precluded it from making a finding of fundamental dishonesty by obstructing the just disposal of the proceedings and therefore QOCS should not apply.

By order of District Judge Osborne the claimant has been ordered to pay the defendant’s costs, to be assessed if not agreed.

An industry view

This is an excellent result for our client, the public sector and the wider insurance industry.

The case was handled by Paul Tarne at BLM who commented: “The outcome of this claim offers great encouragement to the public sector and to defendants who are worried about the prospect of spurious claims being brought against them at no cost to claimants under the new costs regime. The judgment in this claim offers us confidence that the Courts will take a robust approach to the dis-application of QOCS where warranted.”

Although a finding of 'fundamental dishonesty' was not made in this case, since running the successful Summers appeal to the Supreme Court in 2012 BLM's fraud practice group has campaigned to keep the topic of fraud and fundamentally dishonest claims high on the agenda of the Ministry of Justice, the Law Commission and the Transport Select Committee. A new provision in the Criminal Justice and Courts Act 2015, which compels judges to throw out ‘fundamentally dishonest’ personal injury claims completely, has received backing from defendants and their insurers. Before the commencement of this section, which comes into force on 13 April 2015, the courts had only a discretionary power to dismiss an entire claim for behaviour which amounted to an abuse of the court’s process. This power was, however, used rarely and inconsistently. Section 57 of the new Act should introduce a more consistent approach and sends the strongest message to claims fraudsters that significant lies will mean they will get nothing and be at risk of paying costs.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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