Using Expert Evidence To Identify Fraud In Personal Injury Claims

How Expert Evidence Can Identify Fraud in a Personal Injury Case

Much has been written about how expert evidence can assist Claimants in personal injury cases.

What often goes unreported is the value expert evidence provides to the Defendant’s case, especially where suspicions exist regarding the Claimant exaggerating or lying about the extent of their injuries or illness. And such cases are not limited to whiplash claims. In 2017, Paul Roberts and Deborah Briton were sentenced to 15 months and nine months imprisonment, respectively, after fraudulently claiming that they suffered food poisoning on an all-inclusive holiday organised by Thomas Cook. The couple claimed £19,958 in damages for “diarrhoea, stomach cramps, fever, lethargy and nausea”. If successful, the claim would have cost Thomas Cook, who brought a private prosecution against the couple, an additional £28,000 in legal costs on top of the award.

What is the standard of proof required when arguing fraud with expert evidence in personal injury cases?

When it comes to establishing fraud, the Defendant bears the evidential burden. The standard of proof is the civil standard, the balance of probabilities. But when assessing the probabilities, Lord Nicholls in H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] A.C. 563 at 586 commented:

“the court will have in mind that the more serious the allegation, the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence …”

Therefore, the evidence required to prove fraud, although measured on the civil standard, must still be extremely robust.

Expert Evidence in Personal Injury

A Defendants use of expert evidence in fundamental dishonesty cases

The Criminal Justice and Courts Act (CJCA) 2015 introduced a statutory scheme to deal with fraudulent claims for personal injury. It imposes a duty on the Court to:

  • Dismiss any claim found to be fundamentally dishonest unless to do so would result in substantial injustice, (section 57(2)); and
  • Make specific cost consequences, outside of QOCS, on a finding of fundamental dishonesty, (section 57(5); and CPR r44.16).

In fundamental dishonesty cases where the Defendant wishes to present independent expert evidence, they will likely need to comply with the guidance set out in Casey v Cartwright [2006] EWCA Civ 1280, despite the case being decided before the CJCA. This case involved a low-velocity RTA where the defence doubted the authenticity of the Claimants’ injuries. A joint expert report was ordered on the question of causation, and it was found that the crash had happened at less than 5mph. At first instance, the Court revoked permission for the expert’s report as it concluded that the Defendant and the insurers would not be at a disadvantage if permission was not granted as they could cross-examine the Claimant’s medical expert witness.

On appeal, Lord Justice Dyson provided the following guidance:

“[I]t is desirable that, if a defendant wishes to raise the causation issue, he should satisfy certain formalities. In this way, the risk of confusion and delay to the proceedings should be minimised. … [H]e should notify all other parties in writing that he considers this to be a low impact case and that he intends to raise the causation issue. … [H]e should do so within three months of receipt of the letter of claim. The issue should be expressly identified in the defence, supported in the usual way by a statement of truth. Within 21 days of serving a defence raising the causation issue, the defendant should serve on the court and the other parties a witness statement which clearly identifies the grounds on which the issue is raised. Such a witness statement would be expected to deal with the defendant’s evidence relating to the issue, including the circumstances of the impact and any resultant damage.

Upon receipt of the witness statement, the court will, if satisfied that the issue has been properly identified and raised, generally give permission for the claimant to be examined by a medical expert nominated by the defendant.

If upon receipt of any medical evidence served by the defendant following such examination, the court is satisfied on the entirety of the evidence submitted by the defendant that he has properly identified a case on the causation issue which has a real prospect of success, then the court will generally give the defendant permission to rely on such evidence at trial.” ([30] to [32]

Regardless of the prospect of success, permission to submit expert evidence may be refused if:

  • The Defendant does not raise the issue of causation within three months of receipt of the letter or claim.
  • There is a factual dispute the resolution of which one way or the other is likely to resolve the causation issue, expert evidence will likely serve little or no purpose.
  • The injury alleged, and the damages claimed are so small and the nature of the expert evidence the Defendant wishes to adduce so extensive and complex that considerations of proportionality demand that permission to rely on the evidence should be refused.

Wrapping up

Expert evidence is crucial not only in defending liability and/or minimising quantum, but it may also provide vital proof where the Defendant is arguing fundamental dishonesty. However, it is crucial that relevant procedural guidance is followed, including the Casey guidance. Otherwise, the defence risks being unable to rely on an expert witness’s report or testimony, which could in turn lead to a serious miscarriage of justice.

How can Expert Court Reports Ltd help?

Expert Court Reports provides expert witnesses and medicolegal court reports for solicitors, barristers and other agencies including the police, probation services, prisons, and third-sector organisations as well as private clients. To discuss any issues raised in this article, please call us on 01865 587865, email or request a call by completing our online form.