The genuine article?

The onus is on the claimant, not defendant, to prove a claim is not fraudulent, Kellie Lacey reminds the insurance industry. Providing a firm has an efficient strategy is in place, it has a greater chance of dismissing suspect cases

When faced with a suspect claim, it is essential to devise an effective strategy to maximise prospects of success. While approaches may vary depending on the type of case and the nature of the issues in dispute, what remains consistent is the standard of evidence required to win.

It is crucial to bear in mind where the burden of proof lies and to what extent judges are bound by the content of a medical report prepared by a claimant.

The recent High Court judgment of Isik v Clegg provides a useful illustration of the standard of evidence required and the principles that govern this type of civil case.

In April 2005, a traffic incident resulted in a rear end shunt that was identified as a potential low velocity impact claim - liability for the accident was not an issue.

Defence strategy

There were three claims for personal injury: the third party driver, his two passengers and Mr Isik. However, concerns arose that one of the two passengers was not in the vehicle as alleged. It was also identified that Mr Isik had made a number of previous claims; he then issued proceedings in isolation.

The strategy of the defence was to focus on the claimant's credibility in three main areas: the suspected bogus passenger issue; the very minor impact; and the links to a number of prior claims for personal injury. The defence contended the claimant's claim was tainted by virtue of his support of the claim of a passenger who was not in the vehicle at the time alleged (see other authorities on this point, such as Khan and others v MIB and Churchill v Kelly) and raised a number of other linked accidents. Finally, it was the defendant's contention that the collision was so slight, no injury could have been caused as a result.

On hearing evidence from the various parties, Mr Justice Tugendhat, while making no finding that there was a bogus passenger in the vehicle, still dismissed the claim in its entirety and ordered costs against the claimant, commenting: "I find the claimant has deliberately made false statements in order to exaggerate his damages."

In reaching his decision the judge outlined that the burden of proof lies with the claimant. He explained: "The burden of proving, on balance of probabilities, the claimant suffered the damage he claims as a result of the defendants negligence is, and remains throughout, on the claimant. Although it is open to the defendant (Ms Clegg) to suggest and aim to prove that the claim is fraudulent, there is no obligation on her to do so. Moreover if she chooses to do so, there is no obligation on her to prove the truth of her own case".

As far as the claimant's medical evidence was concerned, the judge commented:

"I give weight to that conclusion by an experienced orthopaedic surgeon. But I have to decide for myself. Furthermore, I have heard evidence ... that the expert did not hear - and I have found that the claimant has given false evidence".

The principle applied by the court in this case reinforces the often forgotten principle that it is for a claimant to prove their claim on balance of probability and not for a defendant to prove it is fraudulent or that the claimant was not injured.

Burden of proof

This issue was also considered in the recent Court of Appeal case of Francis and others v Wells and Churchill Insurance. That case concerned a suspected staged or contrived accident where it was concluded that "clearly the burden is on the claimants to prove that the collision occurred ... and that each claimant suffered damage. Unless that is proved on the balance of probability, the claim of any particular claimant cannot succeed".

Furthermore, even if the defendant decides not to obtain expert evidence of his own this does not go to say that the judge must prefer the expert evidence of the claimant. Claimants and their representatives often assume that a medical report from an expert is sufficient to satisfy the burden of proof. This has never been the case, but is often overlooked. The burden of proof rests with the claimant alone and while medical evidence from an expert can assist the court in determining whether the burden of proof has been satisfied, it is not proof in itself.

The well-known LVI case of Armstrong v First York is further authority for this proposition. Caution should always be exercised before making an allegation of fraud. Defendants should only plead fraud when there is substantive evidence, however it should be appreciated that doing so should not reduce the prospects of successfully defending the case. The burden will still rest on the claimant to prove the case on balance of probability.

When dealing with suspect claims defendants have a number of weapons in their armoury that enable the claimant to be tested in the courts. These tools should be used in conjunction with the principles outlined above to ensure only claims with merit are paid. Insurers should be confident, however, that if defences are prepared and presented effectively then the courts will dismiss a case if it is of such a nature that the judge does not, on balance of probability, believe it.

- Kellie Lacey is a fraud specialist in Weightmans' fraud team.

  • LinkedIn  
  • Save this article
  • Print this page  

You need to sign in to use this feature. If you don’t have an Insurance Post account, please register for a trial.

Sign in
You are currently on corporate access.

To use this feature you will need an individual account. If you have one already please sign in.

Sign in.

Alternatively you can request an indvidual account here: