Summary
Dave Young was instructed by Beverly Atkinson of Intact Insurance Ltd in relation to a motor accident that took place on 23 December 2016.
The Claimant was a rear seat passenger in a vehicle driven by her husband. He was driving along the M1 in Northamptonshire when he lost control of the vehicle and collided at around 60mph with a concrete crash barrier that divided a slip road from the motorway. The vehicle rebounded onto the motorway and was then struck by a lorry. The impacts were significant and captured via a dash camera installed within the lorry.
Intact promptly admitted primary liability but pleaded contributory negligence on the basis that the Claimant was not wearing a seatbelt at the time of the accident.
She suffered a brain injury, multiple fractures and scarring.
Intact funded an initial rehabilitation programme in an effort to assist the Claimant in her recovery.
Causation and quantum were in dispute.
The Claimant initially estimated the claim value to be 'unlimited'. Once surveillance was disclosed, she sought £1.7m in damages. Following forensic investigations and well-constructed strategy spearheaded by Beverly Atkinson (Intact) and Dave Young (DWF), the Claimant eventually withdrew her claim with no order for costs.
Injuries
The Claimant's experts confirmed the following injuries:
- Moderate-severe traumatic brain injury with increased risk of epilepsy
- Multiple bilateral rib fractures and pneumothorax
- Abdominal splenic rupture
- Pelvic open book injury
- Multiple spinal fractures C5 to T11
- Mandible fractures
- Left clavicle fracture
- Left tibial fracture
- Loss of teeth
- Scarring
The Claimant argued that she was left significantly disabled as a result of the accident. She said that her mobility was restricted such that she was essentially housebound, she was no longer able to drive, go shopping or attend the gym. She needed level and adapted housing, was unable to care for her younger children, had her own substantial care needs, was unable to return to work and lacked capacity to manage her affairs so needed a Litigation Friend.
Liability
Medical records indicated that the Claimant was not wearing a seatbelt when the collision occurred.
In August 2020, DWF served:
- A Notice to Admit Facts seeking an admission that the Claimant was not wearing a seatbelt.
- A Part 36 offer to apportion liability on a 75/25 basis in the Claimant's favour.
That offer of 75/25% was accepted in August 2020.
Later in the litigation and after a change of solicitor, the Claimant alleged that as a result of the brain injury, at all times she had lacked capacity to litigate the claim so had been unable to give instructions to her solicitor to accept DWF's Part 36 offer.
She subsequently made an Application to be represented by a Litigation Friend. The Claimant filed a witness statement alleging that her initial solicitor did not discuss the issue of contributory negligence with her and she had not given instructions to accept the Part 36 offer. Further, she said that in light of her lacking litigation capacity, the admission and acceptance of the Part 36 offer should be treated as having no effect.
The court made an Order appointing the Claimant's sister as her Litigation Friend but the question of litigation capacity and whether there had been a valid acceptance of the Defendant's offer to apportion liability remained a live issue at all times.
Procedure
Proceedings were issued in November 2019.
At that time the value of the claim was described as unlimited.
On 23 January 2023 extensive surveillance footage was served upon the Claimant's solicitor.
On 26 October 2023 she served a Schedule of Loss totalling £1.7m seeking the following:
- PSLA - £161,761.50
- Past care and assistance - £126,553.95
- Past Loss of earnings - £49,451.88
- Future care and assistance - £436,398.72
- Accommodation - £796,953.83
- Court of Protection - £21,185.60
- Treatment and OT - £28,793.25
- Loss of earnings - £119,700
- Total claim - £1,740,798.73
This Schedule was served by the Claimant after the surveillance evidence had been disclosed. The Schedule was not served in compliance with a Court Order and was clearly served to try to promote settlement negotiations. Prior to service of this Schedule the Claimant had not particularised her claim but it is clear that in the absence of the surveillance evidence, her claim would have been far higher and, for example, would have included far higher care figures and significant Court of Protection costs. The total claim would likely have been around £3m to £4m.
A strategic approach to the claim was critical. Intact and DWF were careful to ensure the Claimant had served witness statements, disclosed expert evidence and attended medical appointments before disclosing the surveillance. As a result of this approach, the Claimant had already disclosed evidence supported by a Statement of Truth detailing her alleged extensive restrictions and disabilities caused by the accident, these being contradicted by the extensive surveillance evidence.
Credibility
Intact commissioned surveillance evidence which captured the Claimant over 20 days from March 2021 to October 2022 – she was seen driving, carrying shopping (on multiple occasions) and attending a class at the gym, all of which she claimed she was unable to do. At times the surveillance coincided with days when the Claimant was being assessed by experts – prior to some appointments she was seen walking unaided and carrying shopping bags but then later she would be seen attending the assessment with walking aids. She also informed those experts that she needed a mobility scooter when out and about.
Intact also secured 'First Notification of Loss' recordings made by the Claimant following accidents that took place when she was driving in 2018 and 2019 so contradicting what she was telling the medical experts.
Claimant's response to surveillance
Following disclosure of the surveillance the Claimant was ordered to file a statement addressing the surveillance evidence, to be served by 26 May 2023. The Claimant filed a statement in which she sought to explain why the surveillance showed she was far more able than she had claimed. She suggested that she was frequently in severe pain after the activities seen, had to take strong painkillers and would suffer in the days after with reduced energy levels.
In May 2024, she then served a further statement admitting to exaggerating her physical disabilities but maintaining that she had not exaggerated her cognitive and psychological problems. This was the first time the Claimant had admitted to exaggerating her claim. The impression is that by that stage it was clear to the Claimant's legal team that continuing to try and explain what was shown on the surveillance was an exercise in futility, hence the decision to serve the further statement.
In December 2024, Leading Counsel for the Defendant received a telephone call out of the blue from the Claimant's Leading Counsel, the purpose of the call being to see if a settlement was possible. Following discussions with Beverly at Intact, the strategy was that an offer would be made to allow the Claimant to discontinue her claim with no order as to costs, failing which an application would be made to plead fundamental dishonesty, such an offer being time limited to early January 2025.
The view was that while the Defendant had a strong case for fundamental dishonesty, the outcome was by no means guaranteed and such a proposal, if accepted would bring an end to the litigation. It was made very clear that if not accepted, the Defendant would proceed to trial.
The Claimant subsequently made an offer of £185k (against her Schedule of £1.7m) with 'modest' costs to be assessed on a standard basis if not agreed.
Following further discussions with Intact, the offer was rejected and the Claimant was informed that the offer to discontinue was still on the table albeit time limited.
The Claimant accepted the offer to discontinue which was approved by the Court in light of the Claimant's purported need for a Litigation Friend.
Reflections
The Claimant was involved in a serious road traffic accident and sustained serious injuries. Her claim had significant value.
Absent the surveillance evidence and 'First Notification of Loss' recording, the figures claimed in the Schedule of Loss would have been considerably higher.
It was made very clear to the Claimant's team that any compromise of the claim would not include a payment by RSA.
The case serves as a stark reminder to dishonest claimants that RSA/Intact are not averse to running FD claims to trial and beyond.
Credit goes to Beverly Atkinson of Intact for fronting a robust strategy with conduct of the claim being led by Dave Young (DWF) who was assisted by Stephen Taylor (DWF). Andrew Davis KC was involved from the outset advising upon evidential issues but also tactics which ultimately allowed the defence to advance a sound position once their concerns regarding the Claimant's credibility were substantiated.
