We will fight them on the beaches: tales from the front line in the war against fraudulent personal injury claims

The Irish Independent  – August 23, 2016

When a couple of well-known insurers in Ireland released their financial results recently, I was struck by the fact that both companies emphasised that they would continue to be vigilant in the fight against insurance fraud – as all other insurance companies are doing.

And well they might.

Insurance Ireland, the body that represents most insurance companies trading in Ireland today, states that insurance fraud costs an estimated €200m annually, and that this ends up being paid by honest policy holders.

Insurance fraud can take on many different aspects. My experience has been in acting for insurance companies and on occasion defending and resisting fraudulent claims made by one party against another in court. While this has become a hot topic recently, it is not new.

In 1991, I was instructed by an insurance company to defend an unusual High Court case. The injured party told the court that he was standing at a table outside his van, peeling potatoes. He alleged that as a car approached him, the driver lost control on a slippery surface, and knocked both the table and the unfortunate man over, and he fell on his knife sustaining a perforating injury to his abdomen. The driver also supported his account.

We thought that this was a suspicious case, and fought it. We got access to the injured man’s hospital notes and records. We then discovered that at the time of the alleged accident, he had been admitted to hospital and that he told the A&E doctors, who recorded it on his records, that he was stabbed in a fight.

Despite this contradictory account, he persisted in his story and we fought the case in the High Court in Sligo – where it was dismissed by the late Mr Justice Ronan Keane.

The case preceded the 2004 Civil Liability and Courts Act, which contains Section 26, an anti-fraud provision – broadly put, anyone giving false or misleading evidence in a personal injury case faces a fine of up to €100,000, and/or 10 years in prison.

The legislation also, under Section 26, obliges the court to dismiss the claim if the plaintiff gives evidence that is false or misleading.

More recently, we defended a case where a cyclist was knocked from his bike by a motorist. He was injured and sued for compensation, as he is entitled to do.

However he admitted at his hearing that he had told lies in his court papers in order to get more money in his claim. In court, he corrected his account and admitted his earlier lies. The defendants had produced evidence from a private investigator to show that the claimant was able to cycle much longer distances than he had alleged, something that he had denied as he said his injury prevented him from doing this.

The court refused to strike out his claim. The Judge said that the cyclist had told a number of lies to his solicitor and to his doctors.

The Defendants sought a dismissal of the action under Section 26, but the Judge invoked a saving provision, which says that “the action shall be dismissed unless the court shall be of the opinion that the dismissal of the action would result in an injustice being done.” The Judge said that “the lies, were not of great significance to the plaintiff’s overall claim”.

Our clients were disappointed in the decision. It sends out all the wrong signals to the insurance market. It seems to me that the Oireachtas was quite clear in the message that the 2004 Act was to introduce – people should not tell lies in presenting personal injury actions and, if they do, their claim should be dismissed, and they could face criminal sanction.

While the Judge had a choice to allow the claim or not, should he have ruled to such an extent in the claimant’s favour? Putting this another way around, if the court had dismissed the cyclist’s claim on the basis of the lies he told, I cannot think that many people would have had much sympathy for him.

We had better success recently. My colleague, Brian Connolly, defended four claims in the High Court on Appeal in the Cork Circuit. Mr Justice MacEochaidh was outraged at the claimants’ cases and he said there were significant inconsistencies in their accounts, including the time the accident occurred and the reasons for their journey. The Judge said he found the plaintiffs’ accounts implausible. He went further and he said that as he found the court had been lied to, he dismissed the four claims and he ordered a transcript of the proceedings be sent to the DPP. Further, he ordered that the costs of the proceedings in the court below and in the High Court be paid by the plaintiffs to the defendant.

The anti-fraud provisions of the 2004 Act have been looked at with envy by neighbouring jurisdictions. In England, Zurich Insurance took the case of Fairclough Homes v Summers to the Supreme Court in London. I assisted them in tabling their submissions on the law on fraud in Ireland.

A Mr Summers was injured in an accident at work where he sustained a fracture to his right hand and a serious fracture to his left heel bone. He pursued a claim for damages of almost £840,000. Evidence was obtained by the defendant, which showed Mr Summers to be far more mobile and capable than he alleged and, importantly, working.

Mr Summers maintained his exaggerated claim up to the trial and the judge held that Mr Summers had committed fraud to satisfy the criminal standard and, amongst other things, underwent an unnecessary surgical procedure in a futile attempt to prove the extent of his injury. Nevertheless, Mr Summers was awarded almost £89,000 in damages.

The insurers went to the UK Supreme Court and sought a strike-out of the award, and tabled the Irish Section 26 as a leading example. The Court conceded that appropriate cases could be struck out if there was evidence of fraud.

As a result of this case, in England there is now Section 57 of the Criminal Justice and Courts Act 2015, which broadly mirrors our own Section 26, introduced 11 years earlier.

So the 2004 Act has been a useful weapon in the armoury of defendants and insurers in resisting fraudulent claims. It is a powerful tool in the fight against insurance fraud.

All insurance companies in Ireland are vigilant in rooting out false and exaggerated claims. It is a fight that the insurers must win – in the interests of the Irish consumer.

Gavin Campbell is Partner and Head of Office at BLM, Dublin

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