Home / Insight / Fundamental dishonesty and litigation in the post-Jackson landscape

Fundamental dishonesty and litigation in the post-Jackson landscape

07/08/2015

Motor Fraud solicitor, George Riley, looks at fundamental dishonesty and litigation in the post-Jackson landscape.

The costs regime post-Jackson has had a lot of mixed press over the past couple of years. However, at a recent trial I had the chance to reminisce about ‘olden times’ and was reminded how whilst it can be challenging, the new costs regime can and does work in favour of successful defendants when dealing with fraudulent claimants.

The case I was working on was that of Mark Ryan v Amey PLC. Keoghs were asked to investigate and defend the case in which Amey PLC were convinced that their driver had been a victim of a road rage incident where the claimant had deliberately applied his brakes to induce an impact. In this particular case, the claimant had no real claims history and he had attended his GP and physiotherapist. The claimant was not particularly ‘over egging the pudding’ in regards to his claim and there was insufficient evidence to discredit him.

I have dealt with cases of a similar nature for a number of years, including prior to the dramatic and controversial changes which Jackson introduced. Pre-Jackson, there was a real risk that certain claimant firms would submit an inflated cost schedule with the added concern of a 100% uplift. This meant that more often than not a sensible and commercial decision would be made to settle on best possible terms – even if there were concerns about the claim. Alternatively a protective and tempting Part 36 would be put on the table in order to give the defendant a security blanket should the matter proceed to trial.

However, in this case, a conference was held with the driver of Amey PLC who performed very well while giving evidence. Therefore, we decided to run the case to trial as the fixed costs regime meant the financial risk in proceeding was a risk worth taking. I got the impression that the claimant solicitors expected a ‘drop hands’ offer at the very least, but we decided not to make any offers.

At Birkenhead County Court, District Judge O’Neill found the claimant to be 'belligerent, truculent and aggressive'. He found that the claimant had applied his brakes deliberately and therefore dismissed his claim. Contrary to the decision in Ali v D’brass, the judge found no fault at all with the Amey driver who he described as ‘honest, helpful and polite’. A finding of fundamental dishonesty was made and the claimant was ordered to pay costs.

When I first heard of QOCS I was as concerned as many other defendant lawyers. However, this case reminded me that whilst the reforms are not beyond challenge, the new regime can work in the favour of successful defendants who proceed to trial and force a dishonest claimant to in effect ‘sing for his supper’.

Author

Graham Walsh

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