Update on Fraud

21 November 2014

Insurance Companies in England and Wales need to prove a criminal standard in contempt of court proceedings for allegedly fraudulent personal injury claims.

Zurich Insurance plc v Kay and others

[2014] EWHC 2734 (QB)

Mr Kay allegedly sustained a serious injury as a result of a slipping hazard in a car park which was the responsibility of Westgrove cleaning services who were insured by Zurich.  Mr Kay's account of the accident had been supported in witness statements provided by his wife and stepson who were co-defendants in the proceedings. Mr Kay claimed that he had been made redundant as a result of his injuries, and valued his claim to be in the region of £750,000. Zurich alleged that the Mr Kay sustained the injuries in a fall while on holiday abroad. Disclosure of Kay's personnel file made no mention of his injuries or of their alleged impact on his ability to work. Zurich applied to the court to commit the three defendants to prison for contempt of court on the basis that Kay and his family had attempted fraudulently to repackage a vacation mishap as a very valuable claim for compensation. Zurich submitted Kay had told work colleagues that he had been injured abroad, his credibility was poor and his route across the car park was implausible. To succeed in the application Zurich had to prove the alleged deception to the criminal standard - beyond a reasonable doubt.

The trial judge was not satisfied that Kay, his wife and stepson had lied about where the accident had happened. It followed that the applications to commit the defendants for contempt had to fail.

There has been no history of contempt of court proceedings in personal injury cases in Northern Ireland - due in part to the differences in civil practice procedures. In particular, pleadings are not supported by Statements of Truth unlike the position in England and Wales and the Republic of Ireland.  Witness statements in England/Wales also carry statements of truth.  In NI no witness statements are exchanged and therefore the issue never arises, before the Courts.  

In cases of exaggeration, Insurers are faced with difficulties in even obtaining costs awards against the Plaintiff.  In Teer v J Kennedy and Company (Contractors) Ltd [2014] NIQB 89 (27 June 2014) Gillen J stated:

"...courts in Northern Ireland need to be cautious about deploying the approach adopted in England on CPR which has not yet been implemented in Northern Ireland. That the time may have arrived when this should happen is an entirely separate argument and one that is not for this court to enter into". ( para 25)

However, in the case of Hazlett v Robinson & Ors [2014] NIQB 17, Gillen J stated that

"when a judge has concluded that a Plaintiff has been demonstrated eg by video evidence, to be a malingerer, dishonestly exaggerating symptoms, the Defendant should not bear any of the costs which the Plaintiff has expended in that unreasonable pursuit".

The conclusion reached by Gillen J in the Hazlett case nonetheless was that in relation to false or exaggerated claims, the mere inclusion of a false element within a genuine claim, would not of itself render the whole claim false or justify the claim being struck out.

For further information contact Rosemary Martin.

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