From: Trainee
To: Duncan Stuart ( Duncan.stuart@ULaw.com)
Subject: Defending Law Velocity RTA Claim
Date: Tuesday 6th November 2018
Dear Duncan,
I’m writing this email in regard to Waterloo Insurance Ltd situation. In this email, I have attached the report set out my understanding of the factual situation. I have looked into each of the questions raised by you: whether the claimant complied with relevant time limits; when does the defence need to be filed by; should it allege fraud and to also consider the costs implications and whether there may be any other way to addressing the issue of the claimant’s dishonesty.
Review of Research
The first issue that was raised was whether Stephen Henderson (The Claimant) complied with the relevant time limit. The claimant has complied with the relevant time limit.
The defence for the claim form should be filed by the 26th November 2018.
With the given information, we should not allege fraud against Stephen Henderson. We do not have enough evidence.
As for cost implications, it is important to understand that if any case that the court may find that the claim is being fundamentally dishonest then the judge would have the rights to struck out the entire claim and also order the claimant to pay the defendant’s costs.
The company would be able make an application to the high court for permission to bring proceedings against Stephan for contempt.
Advice
It would be advisable to file the acknowledgement of service and then the defence as it would give us more time to work on the defence. Therefore, we should file the defence by the 26th November 2018.
It is advisable to should not allege fraud against Stephen Henderson, as it would just put the client at risk if the fraud could not be proven. If the company does still want allege fraud against Stephan then it would be advisable for them to collect more evidence such as witness statements from people who went to watch the game, pictures taken from that game to prove that Stephan is being fundamentally dishonest and to also gather expert evidences.
It would be advisable for the company to make an application to the high court to bring proceedings against Stephan for contempt.
If you require any further assistance, please do not hesitate to contact me.
Kind Regards,
Trainee
Research Report
REF: WL/132-098/EK
CLIENT: Waterloo Insurance Ltd
MATTER: Defending Low Velocity RTA Claim
Date: Monday 5th November 2018
ANALYSIS
Fact and Instructions
The client is Waterloo Insurance Limited, Edward Kane (Defendant) is the person who is insured by this company and also the person who is seeking advice on this matter. Stephan Henderson (Claimant) has claimed damages against the respondent.
Stephan in his particulars of claim stated that he was waiting in a stationary vehicle at a petrol station when Edward’s vehicle drove into the back of his vehicle. As a result of this accident he claimed to have suffered whiplash injuries to his back and neck.
Stephan also has stated that due to him suffering Whiplash injuries he was not able to go to work for two weeks and that it also prevented him from taking part in his normal social activities. He has specifically stated from not be able to pay for his local rugby club for the 3 months reminder of the season.
The company considers that the claim is fraudulent and wishes to challenge it. The company has come to the conclusion of this by the following reasons.
The insurance company did not agree with Stephan’s claim against the fact he has suffered whiplash as to the fact that his car was waiting stationary vehicle and the fact that defendant’s vehicle was almost stationary when the collision occurred.
Another reason as to why the company may find this claim to be fraudulent would be the fact that Stephan has claimed that he is unable to play the rugby game for the rest of the season, however, the company has evidence from the Rugby club’s website that he has played in the game that week. They also have the evidence of him posting a status on Facebook regarding the match that he has played stating ‘Great game today- scored 2 tries.’.
I have considered all the relevant facts to conclude with the research with the advice given on the email.
I have looked at the following areas when commencing this research report:
• Whether the claimant complied with relevant time limit
• When the Defence should be filed
• Whether to allege fraud
• Cost Implications if found fundamentally dishonest
• Any other ways of addressing the issue of claimant’s dishonesty
Legal Issue
My research report deals with the following issue:
1. Whether the Claimant complied with relevant time limit
2. When the Defence should be filed
3. Whether to allege fraud
4. Cost implications
5. Any other ways of addressing the issue of the claimant’s dishonesty
CONCLUSIONS
Legal Issue 1
Whether the claimant complied with relevant time limit.
According to whether the Stephan has complied with the relevant time limit. It is clear that he has issued the claim form within 3 years of the personal injury time limit. The accident happened on the 3rd July 2015 and he has issued the claim form on the 2nd July 2018 which is within time limit. According to Section 11 of Limitation Act 1980 it states that ‘the period applicable is three years from the date on which the cause of action accrued or the date of knowledge of the person injured’.
Following that he has also served the claim form on the 16th October 2018 leaving him 14 days to serve the particulars of claim, which he has correctly served within the time limit 29th October 2018. According to CPR (Civil Procedure Rule) R 7.4. If the claimant did not serve the particulars of claim with the claim form then they would have 14 days from the claim form to serve the particulars of claim.
Legal Issue 2
When defence should be filed.
As for filing the defence, we could file it by the 12th November 2018, this is due to the fact that it must be served within 14 days of the particulars of claim. However, if the client has filed an acknowledging service then he will have 28 days to file and serve the defence. If we file the acknowledgment of service within the 14 days of the particulars of claim served, then we will have time until the 26th November 2018 to serve the defence.
CPR 10 deals with the procedure for filing an acknowledgement of service. CPR 10.3 (1) states that when the client is served with the particulars of claim they would have two options one of which to acknowledge service and another to file a defence. In CPR 15.4 we are able to identify that if the defendant does not acknowledge the service then they would only have 14 days to file then defence. However, if they file an acknowledgement of service then they would have 28 days after the service of the particulars of claim. According to CPR 15.5 If in any case the defendant wishes to extent filing the defence to an additional 28 days then this must be agreed by both the defendant and claimant and the court must be notified by the defendant in writing.
Legal Issue 3
Whether to allege fraud.
It is important to understand that despite the fact that the company thinks that the claim if fraudulent, there is not enough evidence to prove that. If in any case the court finds that the claimant has been fundamentally dishonest, then they will have the power to strike out the entire claim and also ordering the claimant to pay the defendant’s cost.
If the client does still want to allege fraud against Stephan then it is important to understand that he would have ideally done that under the Low value impact claim. According to Pinkus v Direct Line [2018] EWHC 1671 (QB) we could allege fraud against the claimant however we do not have the sufficient evidence to prove this accusation. If we are able to collect the relevant evidence then we can allege fraud however, it will still be too soon.
S.57 of Criminal Justice and Courts Act 2015 allows us to understand what to do when there is fundamental dishonesty in the personal injury claim.
S.57 (1)(b) CCJCA states that if the claimant has been fundamentally dishonest in relations to the primary claim. Fundamentally dishonest has not been defined by the Criminal Justice and Courts act, due to that circumstance it is therefore of the Judge’s discretion to decide whether Stephan would fall into the category of being fundamentally dishonest or not. If he does fall into that category then the court would comply with S.57(2) of CCJCA 2015 and therefore dismiss the primary claim.
Kearsley v Klarfeld [2005] EWCA Civ 1510 allows us to understand if we do not have enough evidence to prove that the fundamental dishonesty then the appeal will be dismissed. In the given case, the defendant has used an unqualified motor examiner to prepare a report, the court had therefore given guidance on the admission of additional expert evidence.
According to Clark v Maltby [2010] EWHC 2091 allows us to understand that if we were to accuse Stephan of fundamental dishonesty and the court finds that he may not have been dishonest then the costs is likely to be a bigger sum.
Legal Issue 4
Cost Implications
According to CPR 44.3(3) the general rule is that the person who loses the case will have to pay the winner’s cost (the receiving party). However, in this given situation it is important to understand the fact IF the judge finds that the claimant is fundamentally dishonest then only we will be able to comply with CPR 44.16 which states that if the court does find that Stephan is being fundamentally dishonest then they have the power to strike out the entire claim and to order the claimant to pay the defendant’s costs.
Legal Issue 5
Any other ways of addressing the issue of the claimant’s dishonesty
There is one other way to address the issue of the claimant’s dishonesty and that would be done by making an application to the high court requesting their permission to bring proceeding against Stephan for contempt under CPR 81.17. The court could then direct the issue to the Attorney General with a request that the Attorney General consider if they can bring a proceeding for contempt of court. According CPR 81.18 (1) (a) states that the claim can be also be brought by the court dealing with the proceedings in which the false statement or disclosure statement was made. According to Edward Nield v Loveday [2011] EWHC 2324 the company would be able to bring proceedings against Stephan for contempt due to his false statement of truth.