DWF obtains fundamental dishonesty finding on appeal after trial judge overlooked inconsistencies in claimant's evidence

Hassan Ali Islam v Mariola Leszko & Mulsanne Insurance Company Limited (2021)

Similar to the cases of Molodi and Richards, the outcome in this case turned on the exposure and court's treatment of multiple inconsistencies within the claimant's evidence, particularly where no effort has been made to resolve or clarify such inconsistencies with a medico-legal expert prior to trial. It highlights: 

• the significance of statements of truth forming part of a claimant's evidence;
• the importance of clarifying apparent inconsistencies within a claimant's evidence through appropriate but robust Part 35 questions, which in turn can undermine the credibility of expert reports;
• the need for courts to give proper regard to unexplained inconsistencies within the evidence. The onus rests on a claimant to prove their case and the existence of such inconsistencies will undermine a claimant's ability to do so;
• the importance of appealing first instance decisions when they are blatantly wrong. 

Background 

Five claims were presented as a result of a road traffic accident on 1 February 2018. Two from the passengers in the insured vehicle and three from the occupants of the third party vehicle. 

Based on the account provided by the policyholder in the first instance, liability was admitted pre-litigation. Subsequent investigations however indicated a potentially staged accident. 

Only the third party driver issued proceedings and on receipt, an application was made to resile from the pre-accident admission of liability, based on an engineer's report as well as photographs of the accident locus suggesting the claimant's account of the accident circumstances and consistency of damage could not be correct. 

Permission to resile was refused but Miles Hepworth of DWF, acting on instructions from Mulsanne Insurance, continued to defend the claim raising a direct challenge to the credibility of the litigated claimant (and other claimant parties). The defence identified the inconsistencies between the claimant's account and other evidence such as the medico-legal report. 

First Instance Trial

Deputy District Judge Wilson heard the trial in October 2020. The claim was for vehicle damage in the region of £4,000, miscellaneous expenses, and personal injury based on the medical report of a Dr Almangoush. 

Only the claimant and one of the passengers in his vehicle gave evidence. Despite having provided a witness statement supporting the claimant's version of events, the first defendant (the policyholder) took no active part in the proceedings.

Counsel for the insurer cross examined the claimant and made submissions on the evidential inconsistencies in the claim. 

The judge delivered judgment within seven minutes of the end of the trial. Despite identifying at least 11 inconsistencies he concluded that an accident had taken place and that the claimant had been injured as a result. He put the various inconsistencies in the claimant's evidence down to the passage of time. 

Appeal 

The insurer appealed the decision on the following grounds: 

1. The judge was wrong in law to find that the claimant had proved he was injured. 
2. He was wrong in law to find that the claimant was a credible witness. 
3. He was wrong in failing to make a finding of fundamental dishonesty.
4. He was wrong in failing to give adequate reasons for his decision. 

Mr Matthew Smith of Park Square Barristers conducted both the original trial and the appeal on behalf of Mulsanne Insurance and DWF. Appeal arguments focused keenly on the cases of Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB) and Richards & Anor v Morris [2018] EWHC 1289 (QB), those cases having been very similar in terms of inconsistencies between a claimant's account and other evidential items such as medical reports. 

The appeal was before His Honour Judge Khan, who reached the conclusion that the deputy district judge had been wrong in reaching his decision. Significant aspects of the appeal judgment matched the submissions made by counsel in the first instance hearing. 

HHJ Khan held:  

Issues concerning the judge's treatment of the claimant's evidence

• 11 inconsistencies were highlighted by the initial judge as examples within the claimant's evidence. These were put down to the passage of time, but no reasonable judge could have accepted this as an excuse. 
  
• The judge provided no explanation for ignoring inconsistencies in the claimant's own evidence about the injury he suffered, his accident history and a number of ancillary matters. Issues which should not have been ignored, included:

• The claimant's selective recollection
  
• Inconsistencies in the claimant's account of where he was going at the time of the accident
  
• Inconsistencies in his account that he had had no warning of the impending impact. 
  
• The inconsistent explanation of his movement within the vehicle during the impact. 
  
• Inconsistencies in his account of the time he had taken off work. Whilst minor in itself, it gained more significance when taken alongside the other inconsistencies. 
  
• The lack of a proper explanation of why he did not undertake the recommended physiotherapy treatment.

Issues concerning the medical evidence

• As set out in Molodi, medico-legal reports are at the heart of whiplash injury claims. 
• The report in this case had been prepared on a false narrative, suggesting there had been a collision to the rear when the claimant's witness statement confirmed a collision to the side of his vehicle. 
• Neither the claimant nor his advisors had asked the medico-legal expert to clarify his opinion following a correct account of accident circumstances. 
• Although the judge in the initial trial referred to the medico-legal report, he did not address the conflict between the different narratives provided. 
• Inconsistencies in the type of personal injury sustained and particularly between the A&E records and the medico-legal report itself seemed to be a "hopeless" inconsistency as per Molodi. 
• The claimant had suggested that the medico-legal expert was lying in his report. This ought to have rung alarm bells with the judge and this alone would have been sufficient for a judge to have concerns about the reliability of a claimant. 

HHJ Khan found that a reasonable judge would not have concluded that personal injury had been sustained and could only have reached the conclusion that the claimant had not proved his claim. He should therefore have dismissed it. The only support for the claim was the narrative evidence of the claimant himself which the judge should have found to be unreliable. Furthermore, he ought to have found that the medico-legal report had been prepared on a false narrative. 

In reaching his decision HHJ Khan also relied heavily on the case of Haringey v Ahmed [2017] EWCA Civ 1861 which emphasises that interference in the first instance decision, "will only be justified where a critical finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached" but which also sets out clearly that, "if findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance."

Fundamental Dishonesty

HHJ Khan considered the question of fundamental dishonesty pursuant to CPR r.44.16. An honest witness would have been able to give a consistent account of the accident circumstances. Furthermore an honest claimant would probably have stated that he was unsure of his accident history when asked about it by the relevant medico-legal expert. The claimant must have known that he had been involved in more than one road traffic accident and he had therefore deliberately lied to the expert. 
That same dishonest approach having been maintained in the claimant's witness statement and during cross-examination, demonstrated that the claimant was less than forthcoming. The appeal judge determined that the claimant had tried to disguise the facts and that this in turn was fundamental to his case. An honest person would not have had problems describing the types of personal injury or dealing with the various inconsistencies highlighted and, when faced with these stark inconsistencies a reasonable judge would have found the claimant to be fundamentally dishonest. 

The appeal was upheld and the claim dismissed with a finding of fundamental dishonesty. 

Costs 

The claimant had been invited not to oppose the appeal, but opposed it nonetheless. As a result an award for costs was made in favour of Mulsanne Insurance, in respect of the original trial costs and the costs of the appeal. 

The successful appeal put an end to any of the claims waiting in the wings, leading to savings for Mulsanne Insurance in excess of £50,000.

David Taylor, Head of Fraud at Mulsanne said “Defeating such fraudulent claims as this often involves identifying a number of inconsistencies in the claimant’s evidence and the extent of those inconsistencies often becomes the backdrop to the defendant being able to demonstrate the dishonesty of the individual bringing the claim and indeed the validity of the collision itself. When looking at the flaws in the claimant’s evidence it obviously came as a surprise when we received DDJ Wilson’s judgment. Having received such an astonishing outcome at the initial trial we are very pleased with the favourable result of the appeal” 

Paul Twilley, Claims Director at Mulsanne Insurance said “Thankfully, as a result of the diligent work of our Counter Fraud team and that of Miles Hepworth and Matthew Smith we have eventually received the right outcome. The finding of Fundamental Dishonesty and the comments made by HHJ Khan in the appeal judgment reflect the appropriate result for this case and the steps taken to appeal the first decision reflect our appetite for maintaining a robust and aggressive strategy towards false, exaggerated and fraudulent claims.”