Dishonesty in personal injury claims

The case of Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ) is a sobering reminder that one bad apple can spoil the barrel. It is a case involving extreme dishonest behaviour by a claimant’s legal and expert team to inflate the value of a personal injury claim. Sadly, I must acknowledge that such behaviour exists, however limited, and it throws its shadow far across my industry. It only takes one such case to undermine the work that we do. If you are a regular reader of these blogs or work within the industry you are already familiar with the battles we are fighting to ensure that claimants’ rights are fully protected and realised. Successes in rehabilitation; enabling injured victims to live/work independently; connecting clients with charities and organisations to enrich and empower their lives. These are not what make the headlines. What makes the news is a dishonest lawyer receiving a prison sentence and an equally corrupt GP expert narrowly escaping the same fate. With one stroke we are all tarred leading to readers’ comments such as ‘That is the way they are trained. To evade the truth and evade accountability. There are not enough honest solicitors to keep the courts open. Hence the notorious reputation of the ‘profession’.

Please let me put this case into context. The claimant suffered minor injuries in a road traffic accident in December 2011. He wished to bring a claim and for this purpose saw an expert who reported recovery within a week. This expert was instructed through an agency by the claimant’s solicitor. The agency just happened to be run by the solicitor’s aunt. The claimant’s solicitor was unhappy with report and asked that it be amended to conclude a recovery within 6-8 months. This would have the effect of increasing the value of the claim and the costs recoverable. The report was amended upon request with no further consultation and despite the notes not supporting the lengthier recovery period. It was the latter report which was sent to the insurers. It is to be stressed that the claimant was innocent of these changes. Indeed, it appears the claimant’s solicitor went as far as forging the claimant’s signature on a witness statement purporting to support the false report.

The claim did not settle and a trial was listed. A paralegal prepared the bundles for court and in doing so inadvertently included both the original and false reports. The trial was abandoned as a result and an investigation instigated. Contempt of court proceedings were brought against the claimant’s legal team and the GP expert. On 5 October 2018 the claimant’s solicitor was found guilty and jailed for 15 months. The expert was also found guilty and received a 6 month suspended prison sentence. The insurers appealed against the latter arguing that a longer term of imprisonment of immediate effect was necessary. The Court of Appeal agreed and stated that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than a committal to prison will be sufficient. However, as this guidance was not available at the time of the original hearing, the Court did not impose the more severe punishment but rather it was noted that the sentence was unduly lenient and will serve as guidance for subsequent cases.

I am hopeful that more positive lessons can be learnt from this case. Such dishonesty is not widespread. The defendant’s legal team described the case as being ‘unprecedented’. Transparency and a well-documented decision making process is key. Taking as an example the need to amend a medical report, there are a number of reasons this may be necessary (spelling errors, updated medical notes not available at the time of drafting, a misunderstanding on the part of the expert supported by notes made at the time of examination, factual errors, receipt of other reports which have a bearing on the conclusions). I fear that that the disproportionate effect of this case will be the presumption that if a report is revised then the revision must have been for less than honest reasons.

It is only when you become a claimant do you realise the work which goes into bringing a claim. The evidence that needs to be collated, the meticulous analysis and review of that evidence, the expert team which is built, the reports which are produced, the testing which those reports undergo, the statements which are obtained, the efforts which are made to collaborate and negotiate with the insurers. There is no place for dishonesty in that process. There is no place for dishonest solicitors or experts. It is more than regrettable that there are some bad apples but they should not be taken as a reflection of the industry as a whole. I am very proud of the work that I and the team I work within do, our blogs are full of the successes we achieve which make real differences to the lives of claimants. Those success stories may not make the headlines but they are the true picture of the work that we do and the difference that we make.

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