Fundamental dishonesty, summary strike out and displacement of qualified one way costs shifting
DC v BMW UK Limited [2018]
Dolmans has recently achieved an extremely successful outcome for a major Insurer in connection with a claim involving substantial damages and a proven allegation of fundamental dishonesty. To our knowledge, this is the first case of its kind in that it involved a summary strike out of a claim (pursuant to section 57 of the Criminal Justice and Courts Act 2015 and/or CPR 3.4) based on a finding of fundamental dishonesty, rather than a strike out following a trial involving oral evidence for one or both parties (cf. the case of Sinfield v LOCOG discussed in the February 2018 edition of the Dolmans Insurance Bulletin).
The Claimant, a former employee of the Defendant, claimed damages against BMW Manufacturing UK Limited in excess of £1 million (NB: before the recent discount rate adjustment, the current valuation of the claim could be more like £2 - 3 million) for an alleged accident at work in April 2013. Dolmans were instructed in February 2016 following service of proceedings.
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The Claimant alleged that he was electrocuted by the remote control of an overhead pendant crane, and effectively lost the use of his right arm as a result of the incident. Damages for personal injury, past and future loss of earnings, and cost of ongoing care and assistance, were claimed in the proceedings in an action brought, initially, via the Claimant’s Union Solicitors. Extensive medical evidence was supplied in support of this position from a number of experts, including orthopaedic expert evidence, psychiatric evidence, pain management evidence and nursing care evidence. A Provisional Schedule of Loss (settled by Counsel) signed by the Claimant personally, accompanying the proceedings, totalled over £860,000.
However, our Insurer client, being suspicious of the claim from the outset, had, by then, already subjected the Claimant to several periods of covert surveillance from the initial presentation of the claim; the video footage from those periods of surveillance appeared to show that there was little, or nothing, physically wrong with him and he was seen engaging in various activities, including driving and what appeared to be working at a local car repair workshop, which included footage of him pushing a broken down car off the forecourt using his injured arm, and other similar activities. At no point was he seen to be wearing a sling on his right arm, contrary to his medical reports.
We noted that one of the Claimant’s medical experts (his Pain Consultant) had made reference in his medical report to having filmed his examination of the Claimant. We requested, and obtained, a copy of this video footage. This showed the Claimant being examined, and displaying obvious signs of apparent pain and severe limitation of movement in his right arm. This footage was taken shortly after one of the covert video films obtained by our Insurer client, which, as above, showed a radically different picture in terms of physical disability (specifically, in that film, the Claimant was shown providing what appeared to be roadside assistance to a member of the public from the aforementioned motor repair business, and was seen engaged in an animated conversation with this person, making full use of his right arm).
In July 2016, the Claimant was examined by a Neurologist, instructed for the Defendant, in Bristol. We also arranged for covert surveillance on that occasion, and he was seen, for the first time (in such footage), wearing a sling on his right arm and, moreover, for the first time, his wife was seen driving him around in his vehicle. He had claimed travelling expenses to that appointment by train, but then was driven by his wife in what was considered to be an anti-surveillance tactic.
Directions and Costs Budgets were dealt with by Oxford County Court in September 2016, and, by agreement, provided for disclosure of Witness Statements in December 2016 and exchange of medical evidence on 9 March 2017. A Final Schedule of Loss was due to be served by the Claimant on or before 30 March 2017. Thereafter, a further Case Management Hearing was to be held on the first open date after 30 March 2017. We deliberately included both the provision of an updated Schedule of Loss, and a further Case Management Hearing, shortly thereafter, for reasons which will be obvious from later comments in this article.
The witness evidence on behalf of the Claimant (from the Claimant and his wife) confirmed extensive disability and major impact on their lives arising out of the incident. We obtained, and disclosed, a number of Witness Statements on behalf of the Defendant from former work colleagues of the Claimant who confirmed that the incident in April 2013 was very minor in nature and all were surprised (to say the least) at the nature of the claim now put forward on his behalf.
Medical evidence was carefully assembled on behalf of the Defendant, from a number of eminent experts, concluding that there was no medical basis for the alleged disability reported by the Claimant. The medical experts, with the exception of the care expert instructed, deliberately, were not shown the surveillance footage until after their initial examination and report was available. Supplemental reports from all relevant experts, thereafter, concluded that the Claimant was exaggerating his symptoms for financial gain. The care expert was able to report the Claimant’s demeanour during a home visit in detail by reference to the surveillance footage provided in advance of that home visit.
On 9 March 2017, we couriered 8 medical reports and 5 discs of surveillance footage to the Claimant’s Union Solicitors in Oxford. Receipt of this evidence, therefore, would have been before the deadline for exchange of medical evidence, expiring at 4pm the same day. This approach was carefully considered in advance and a view was ultimately taken that given the power of this material, it was tactically more advantageous to ensure disclosure within the timetable (and, therefore, prevent any argument as to late disclosure and possible Denton v TH White arguments) rather than wait to see if yet further (damning) expert evidence was produced on behalf of the Claimant following further (up-to-date) examinations of him since the date(s) of his original reports.
It remains unclear, to this day, whether such material (updated medical evidence) exists. Regardless, no further medical evidence was disclosed by the Claimant’s Solicitors on 9 March 2017.
Following disclosure of the aforesaid evidence, on 15 March 2017, Dolmans wrote to the Claimant’s Solicitors indicating that they explicitly expected the Claimant to produce his Final Schedule of Loss (verified by a Statement of Truth), failing which an Application to the Court to strike out the claim would be made. The Claimant’s Solicitors were also explicitly informed, at that stage, that the Defendant considered this to be a claim involving fundamental dishonesty and appropriate steps would, in due course, be taken in respect of the same.
The Claimant’s Solicitors promptly requested disclosure of the entire (unedited) surveillance footage obtained of the Claimant, which was compiled, reviewed and then disclosed. The edited footage in this case spanned several hours’ worth and so this process was very laborious, but necessary to ensure that there was nothing missed in the unedited footage which could arguably paint the situation differently.
