Claimant was fundamentally dishonest in special damages claim

In the case of IO v an NHS Trust (unreported) the claimant claimed damages for personal injury, care and assistance, and childcare assistance arising from an accident occurring during the course of their employment with the defendant. Breach of duty was admitted early on in the claim and Weightmans were instructed by NHS Resolution pre-litigation, and latterly following service of proceedings, to investigate quantum and concerns over the special damages claim. 

The claimant served evidence from an orthopaedic surgeon, confirming a four-week injury to the right hip and lumbar sacral spine. The claimant denied any previous history of back pain to their medical expert. The claimant’s special damages claim accounted for almost 60% of the total value of the claim. In support of the special damages, the claimant adduced an email from the alleged care provider, as well as an invoice to support the childcare claim. Concerns as to the veracity of the evidence supplied were raised, which appeared to have been created specifically for the purpose of justifying the claim, rather than contemporaneously. Weightmans were instructed by NHS Resolution at this stage to investigate.  There were various concerning features of the documentation, in particular the invoice, and the claimant produced no evidence to confirm that the sums of money claimed had been paid, asserting they only paid in cash. Weightmans’ specialist intelligence team were instructed to carry out various investigations. 

During the course of the litigation, the claimant responded to Part 18 requests for further information and served a witness statement, both of which contained contradictory accounts as to how the claimant had incurred the alleged losses, and whether they had been receiving this assistance before the accident. The claimant failed to adduce any direct evidence from either of the providers of assistance to substantiate the claims. We also obtained copies of medical records which confirmed the claimant did have a history of back pain pre-dating the accident.

Having confirmed in their pleadings and subsequently in open correspondence that the claimant did not receive any care and assistance prior to the accident date, following investigations and Part 18 requests, the claimant then retracted this assertion and confirmed that arrangements preceded the date of the accident, further adding to concerns over veracity.

The claim proceeded to trial. During cross-examination the claimant confirmed that the denial of pre-existing back problems to her expert was not true, and they had a significant history of back symptoms pre-dating the index accident. The medical report also confirmed that, at the date of examination over two years post-accident, the claimant had ongoing back symptoms. The claimant denied this was the case during cross-examination. During questioning the claimant asserted they could not recall ever reading the medical report themselves and denied having any knowledge of certain parts of it. This was despite confirming in their witness statement that they agreed with the findings of the medical expert.

The claimant was cross-examined about the special damages claims. It was established that the claimant had known both of the care providers before the accident and had also been receiving assistance before the accident occurred. This was directly at odds with both the claimant’s Part 18 replies and their witness evidence, despite later attempts to retract them. The judge found that neither of these pleadings were therefore true.  The claimant also accepted that the invoice they had produced to support the childcare claim had been produced specifically for the purpose of litigation and had been backdated to make it seem as though it had been produced contemporaneously.

Pursuant to Section 57 of the Criminal Justice and Courts Act 2015, the defendant invited the court to find that the claimant was fundamentally dishonest in relation to the special damages sought. The judge was in agreement. It was found that the claimant knew both of the care providers before the accident and had used their services before the accident occurred. The claimant would have continued to use their services but for the accident in any event. The judge found that the claimant was fundamentally dishonest in relation to their special damages claim. He confirmed the claimant knew they were asking for special damages that they required in any event, and a reasonable person would have realised this.

The claim was dismissed and pursuant to Section 57(5) of the Act the claimant was ordered to pay the defendant’s costs.

The NHS is a fair employer which will, if damages are claimed legitimately, seek to settle claims as fairly and efficiently as possible. However, as an organisation that is answerable to the public in relation to how taxpayers’ money is spent, this case demonstrates that it will also robustly defend claims from dishonest claimants and seek recovery of costs. This case also sends out a strong message that, even in cases where admissions have been made and the sums claimed are comparatively small, the NHS will vigorously investigate suspicions of fraud and pursue findings of fundamental dishonesty against claimants in appropriate cases.

Weightmans’ are market leaders who work in partnership with our clients to identify claimant behaviours and devise litigation strategies to tackle fraudulent behaviours in the courts. Our approach is simple but effective, using proven techniques and technologies to detect fraud, challenge through delivery and then deter those who perpetrate it, whether they be individuals, fraud rings, solicitors or companies.