‘Doe not pass go; Doe not collect £85,000’ – Claimant fails to convince Court that he was too sick to miss credit hire trial
Claimant's letter of ill health deemed insufficient to adjourn trial and avoid payments to defendant
In the case of A. Doe v B. Reid, the defendant collided with the rear of the claimant’s vehicle on 24 August 2015 and subsequently brought a claim for repairs and credit hire charges. Negligence was conceded and a without prejudice payment for the PAV of £10,800 was released to assist the claimant in mitigating his losses.
The claimant entered in to various hire agreements with Direct Accident Management totaling almost £75,000, but investigations by our Intelligence Team established that the claimant had, during the hire period, access to at least three other vehicles.
These vehicles were not mentioned in the claimant’s statement, and ownership of any other vehicles was specifically denied within his replies to our Part 18 questions. Upon receipt of the claimant’s replies we applied to file an amended defence pleading fraud, which was granted.
The court listed the case for trial in January 2018 but this was adjourned to allow the claimant to respond to our Part 18 questions, the claimant’s solicitors maintaining that he was too ill to deal with/respond to the questions. The claimant was a prolific user of social media sites which evidenced an active lifestyle, contrary to the statement provided by his solicitors.
The trial was listed subsequently for two days on 15/16 January 2019, and on 14 January the claimant's solicitor made an application to adjourn on the basis of the claimant's ill health, providing a sick note from his GP citing ‘exhaustion’ as the reason for his inability to attend.
The court vacated the Trial and adjourned the application, ordering the claimant to provide “full and complete” evidence in support of his application. The claimant subsequently provided letters from his treating hospital which revealed that the claimant had been ill, but that his treatment had concluded in November 2016, and that he had been given the all clear in May 2018.
The court held, upon consideration of the letter from the claimant's Consultant, that the claimant had failed to satisfy the test set out in GMC v Hayat, ie that the evidence provided to adjourn the trial on grounds of ill health was insufficient. The claim was struck out and the claimant was ordered to repay the interim payment of £10,800 together with the defendant's costs of the action.
The rationale behind this decision followed the principles established in the case of GMC v Hayat. The evidential test applied with regard to whether a matter should be adjourned or not requires the medical evidence to:
- “Identify with particularity what the patient’s medical condition is.”
- Explain why it obstructs participation in the trial process.
- Provide a reasoned prognosis and give the court confidence that what is expressed is “an independent opinion after a proper examination”.
The test is born out of the Court’s view that a “culture of adjournment” must be confronted and discouraged. Whilst it was conceded that the claimant had been ill, his own evidence indicated that he no longer was, and in this instance the evidence before the Court fell well below the standard threshold required. Further, it was submitted, and conceded by the claimant’s counsel, that if the claimant could not attend in person to give evidence then the claim would fail due to the lack of oral testimony (see Gladwin v Bogescu).
Insurers are often confronted with spurious requests for adjournment where the claimant is in difficulty in respect of providing adequate disclosure of documents or a convincing response to the issues raised in the defence. It is valuable to keep the above principles in mind when confronted with an application to adjourn at the doors of the Court.
A secondary issue with which the industry continues to grapple is how to define credit hire fraud. Historically, the industry has tended to give quite a narrow definition, ie only if a hire claim is entirely, or partially, fictitious. However, this case raised the question as to when a failure to mitigate crosses over and becomes a fraudulent claim.
Whilst the Trial Judge was not prepared to make a finding of fraud without hearing from the claimant, his failure to use any of the other vehicles owned by him was, in the first instance, a failure to mitigate. In signing his witness statement with a statement of truth alleging that he had ‘no alternative vehicles available to him’ he arguably sought to pursue a fraudulent claim.
If you have any questions or would like to know more about our update, please get in touch with Charlie Williams (Partner).