Frances Whitehead and Claire McKie of Backhouse Jones provide an update on whiplash claims and striking out
Proposed whiplash reform
The government is bringing forward a new reform programme to tackle the high number and cost of whiplash claims.
The four main proposals are: [wlm_nonmember][…]
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1. Tackle the high number of minor injury claims by either removing compensation for pain, suffering and loss of amenity (PSLA) or by reducing compensation for PSLA by setting a fixed amount payable of £400, or £425 where there is a psychological element.
2. Reduce compensation for non-minor injury claims, where recovery takes over six months, through the introduction of a set tariff system. For example, for claims involving injury duration of seven to nine months the compensation tariff would be £740 and for injuries lasting 19-24 months the tariff would be £3,600.
3. Raise the small claims limit for all personal injury claims to £5,000. This would mean that, in the majority of whiplash claims, the legal costs of such claims would no longer be recoverable from defendants.
4. Ban pre-medical offers to settle whiplash claims so that claims cannot be settled without medical evidence from a MedCo accredited practitioner. The consultation ran from November 17, 2016 and welcomed responses until January 6, 2017. It is now closed and a paper summarising the responses to the consultation is due to be published by April 7 2017.
A YouGov survey of 2,000 UK consumers shows that a significant number are happy to make fraudulent illness claims against tour operators. 46% of respondents said it was acceptable to make a claim for food poisoning even if their illness was not the fault of the hotel.
Prison calls – a fraudulent whiplash claim
A father of three has been sentenced to 12 months imprisonment after he attempted to claim £15,000 for a whiplash injury after his claim was discovered to be completely fabricated.
The High Court found that Bernard Parmar had made or caused six separate false statements of truth following an RTA in September 2012.
Parmar had claimed damages for the injury, but the third party insurer AIG Europe contested his claim on the foundations that it was fraudulent. The case went to trial in July 2015 where Parmar and two supporting witnesses were cross-examined. By the second day Parmar stopped attending the trial, his counsel and solicitors withdrew for want of instructions and the Judge found that he had been “persistently dishonest” and “unhesitatingly” found the claim was fraudulent.
AIG made a committal application in relation to a false statement of truth. His Honour Judge Robert Owen QC heard one statement that contained “nine pages” of “utterly false detail” including “ludicrous” suggestions such as that the force of the collision was enough to shear off the steering wheel.
Owen found that the “carefully planned fraud” was an attempt to deceive a trial judge and subsequently undermine the legal process. He added that the crime would not have been victimless as innocent persons would have been impacted financially. Owen concluded that those who undertake the behaviour to undermine the legal system should expect a sentence of imprisonment
Striking out for want of prosecution: a risk for Claimants?
Striking out a civil claim for want of prosecution (where a Claimant fails to proceed with a claim) is back.
If a Claimant allows an issued action to become dormant, the Defendant can seek dismissal of the claim without the need to prompt the other side. In Denton v White [2014] EWCA Civ 906, it was said that what litigants need is finality not procrastination. Allowing delay creates backlogs and stagnancy in the court systems.
In Solland International Ltd and others v Clifford Harris and Co [2015] EWHC 1018 (Ch), the Claimant had failed to file a listing questionnaire due 31 months earlier. The Defendant then applied for a strike out and subsequently, the Claimant served the questionnaire and sought relief from sanctions.
Although no automatic sanction for this breach existed, the Court had the discretion to make whatever order it felt appropriate.
The actions of the Claimant constituted a breach of process and therefore striking out was warranted under the Civil Procedure Rules. An appeal upheld this decision.
In the recent case of David Phelps v Peter Button [2016] EWHC 3185 (Ch), the Claimant had won his case insofar as he had obtained a liability judgment after a hearing in 2007 and directions were given for determination of quantum.
The order was not fulfilled and then in October 2016, 13 years after the commencement of proceedings, the Claimant applied to the Court for a quantum hearing to be listed.
The Judge found that the unexplained and unacceptable delay meant that the quality of trial would be greatly diminished. It was the duty of the Claimant to bring it to a timely conclusion.
This meant that a case that had been won, subject only to proof of recoverable damages, was lost and the culpable Defendant walked away.
A Claimant who launches litigation is now, more than ever before, expected to get on with it otherwise Defendants may be tempted to apply for a strike out – and be successful.[/wlm_ismember]
