The recent insurance-related legal judgments and what they mean for the sector

Fraud can mean prison

Motor Insurers’ Bureau v Shikell and others (Queen’s Bench Division, Leeds)

James Shikell submitted a £1.35m claim for damages after being injured in a road traffic accident on New Year’s Eve 2002 as a passenger in a car being driven by an uninsured driver.

Shikell complained that following the injury he suffered from impaired memory, difficulty in concentrating and decision-making, severe fatigue, anxiety, poor co-ordination, and aching and stiffness in his neck and ankles.

But the Motor Insurers’ Bureau filmed Shikell playing football vigorously and competitively throughout a 90-minute game.

The football club’s website showed that Shikell was captain of the team and had played in all of the matches that season, on some occasions having gained the accolade of ‘man of the match’.

Decision

Shikell was found guilty of contempt of court and sentenced to one year’s imprisonment. His father Robert Shikell also received a year’s imprisonment for his role in supporting his son’s claim.

A third man, Simon Fennell, was fined for providing a false statement in the personal injury claim.

What this means

Weightmans partner Elaine Chapman says: “This landmark judgment sends a clear and resounding message that high-value cases are no longer the ‘no lose gamble’ for individuals making fraudulent claims. The custodial sentences imposed reflect the zero-tolerance approach of the judiciary towards insurance fraud.”

When to disclose evidence

Douglas v O’Neill (High Court)

The claimant Joe Douglas was seriously injured when he was run over, while drunk, by defendant Matthew O’Neill’s car, with liability agreed in the former’s favour.

But while the defendant accepted many of the claimant’s disabilities and symptoms, the extent of the claimant’s long-term brain damage and reduced mobility was disputed.

The defendant obtained surveillance evidence of the claimant driving and refuelling a manual car, dealing with a bank employee, using a cash machine and shopping unaided, all of which were at odds with the symptoms presented by the claimant to doctors. The defendant completed the surveillance in October 2010 but did not serve it until January of 2011, two months before trial.

Decision

The court held that, in the interests of justice, the defendant should be permitted to use the surveillance evidence.

What this means

This is a helpful judgment for insurers because it makes plain that a defendant is entitled to wait until the extent of the claimant’s claim is clear before disclosing surveillance evidence.

Provided this evidence is served at the first reasonable opportunity after the claimant has finished pleading their case, then it should be permitted. Otherwise, a dishonest claimant would have an opportunity to tailor their case to the defendant’s evidence.

Keep an eye on Facebook

Daniel Locke v James Stuart and AXA Corporate Services Ltd (High Court)

Daniel Locke sought damages for personal injury and other losses following an alleged road traffic accident. The defendant James Stuart’s insurers alleged that the accident was one of nine related staged accidents involving a number of conspirators, which had all been referred to the same firm of solicitors by the same individuals and had all occurred in the same area over a

six-month period. The vehicles involved had been on short-term hire and had multiple passengers, resulting in 97 individual claims. The defendants produced evidence from Facebook that the claimants knew each other.

Decision

The judge, Andrew Edis QC, found in AXA’s favour. But he warned that the details of individuals obtained from social networking sites should not appear in trial bundles with any suggestion that they were involved in fraud unless there was proper supporting evidence.

What this means

Social networking sites are increasingly popular and can be a useful source of evidence that conspirators know each other or that claimants might not be as seriously injured as they allege, with some even using them to boast about the frauds to friends. It is encouraging, therefore, that the courts recognise the evidential value of these websites.