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No more “Free iPad if you claim” deals and a tough new anti-fraud provision comes in for injury claims

John Ibbotson of Ibbotson Brady Solicitors comments:

On the 12th of February 2015, the MOJ (Ministry of Justice) announced that new measures had been passed into law in the Criminal Justice and Courts Act 2015 which aims to further tackle the perceived, and in some cases real, problem of insurance fraud. They are expected to come into force in April 2015, just before the election.

The new law contains sections aimed at dealing with sharp marketing practices and also affects court proceedings.

The Act bans the offering of inducements like iPads, laptops or cash up front to potential new injury claim clients coaxing them to bring a claim.

It also says that the courts will throw out personal injury cases completely where the claimant has been found to be “fundamentally dishonest”, unless the court thinks that doing so would cause “substantial injustice”. Rather worryingly, neither of these terms is defined by the new law.

In reality, the prohibition of “inducements” to bring a claim, which has long been called for by Justice Secretary Chris Grayling, has been welcomed by large parts of the wider legal community, me included. It always struck me as a grubby practice, usually adopted by law firms run on a “factory farm” basis, rather than by good lawyers with a personal touch and a genuine concern for their clients.

Unfortunately, I am much more worried by the introduction of the “fundamental dishonesty” test. It has generally been met with deep and genuine concern by decent and honest claimants and their lawyers, contrasting with the joy felt in defendant orientated quarters.

Kerry Underwood, a very well known and respected solicitor in the field, of Underwoods Solicitors, has expressed strong and clear views on it and how it could affect personal injury claims massively.

Kerry explains in his blog, kerryunderwood.wordpress.com, that the new law requires a court to dismiss the whole of an injury compensation claim if it is satisfied, merely “on the balance of probabilities” and not even “beyond reasonable doubt”, that the claimant has been fundamentally dishonest in relation to any part of the claim.

He says, “Thus fundamental dishonesty in relation to, for example, an aspect of future special damages (which are financial losses) means that the whole case, including the general damages claim (which are damages for the pain and suffering of the injuries), is lost. Likewise an exaggeration of symptoms, if that is held to be fundamental dishonesty, means that a client loses the whole claim including the claim for his written-off vehicle caused by the other party’s negligence”.

I very much share his concerns. It does not feel well thought through and fair; in fact it appears very likely to become disproportionately draconian and some poor claimants are going to suffer. Blatant frauds and blatant exaggerations in claims are already being caught out and punished. This feels like a sledgehammer to crack a nut.

Kerry adds, “None of us know how these draconian and unprecedented provisions will be applied”.

He then goes on to imagine what might happen in cases under the new law, as follows.

“A claim is brought. Liability is admitted. Past specials (which are financial losses) are agreed and paid at £40,000. Generals (the pain and suffering damages) are agreed and paid at £30,000. There is a dispute about future loss of earnings and that issue goes to court and the judge finds that the claimant had an unrealistic view of his future career prospects and has been fundamentally dishonest in his future loss of earnings claim.

Bang goes the whole award and the claimant must refund the £70,000. Admissions in personal injury cases are now meaningless.

Satellite litigation will not begin to describe what will happen; it will be constellation litigation”.

Quite. Very worrying indeed. In reality, I think that it is likely that clarity will only be achieved once the provisions have been tested in court. Some argue that the term “substantial injustice” was deliberately put in place in order to give the courts some flexibility and to ensure that the new regulations are applied fairly. In other words, if the judge has a bit of sympathy overall with the claimant then he or she might use this “get out” provision to avoid having to dismiss the whole claim.

I predict that the definitions of “fundamental dishonesty” and “substantial injustice” are going to be played out in the courts for years to come. I very much fear that some poor, genuine claimants are going to suffer as guinea pigs for this new law.

In summary, I very much like the inducement ban, but I am deeply, deeply worried by the whole “fundamental dishonesty” debacle. I score the government 5/10. Must do better.

Ibbotson Brady Solicitors Limited
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