Exaggeration in personal injury claims

March 3, 2021

Alice Dobbie

Alice Dobbie asks: ‘How far is too far?’

Introduction

The principles of fundamental dishonesty in personal injury claims are well-known. The key rule and legislative provisions are twofold:

  • CPR 44.16: QOCS can be disapplied if the claim is fundamentally dishonest.
  • 57 of the Criminal Justice and Courts Act 2015: the claim will be dismissed if the Claimant has been fundamentally dishonest in relation to the primary PI claim or a related head of damages.

A finding of fundamental dishonesty matters because it is a gateway not just to recovery of costs, but also the award of exemplary damages and even committal to prison. But what of exaggeration? It is an increasingly common characteristic of claims. Does it lie outside the bounds of ‘fundamental dishonesty’ principles and can Claimants therefore exaggerate with impunity? This article will answer that question.

Honest exaggeration

First, it has long been recognised in caselaw that there is such a thing as honest exaggeration. As Coulson J said in Walton v Kirk [2009] EWHC 703:

“the exaggeration which I have described falls within the bounds of familiar and understandable attempts to make sure that doctors and lawyers do not underestimate a genuine condition, rather than indicating an outright attempt to mislead in order to increase the value of her claim beyond its true worth”.

In Smith v Ashwell [2019] 1 WLUK 541 (23/1/19), HHJ Hampton quoted with approval an article in a medical journal from 2002 written by a consultant psychiatrist and consultant anaesthetist which said:

“Outright faking of pain for financial gain is rare, but exaggeration is not, especially if the patient is involved in litigation. It is often difficult to determine whether this represents an attempt to convince or deceive the clinician.”

Dishonest exaggeration

Secondly, however, exaggeration can be a dishonest attempt to seek to increase damages beyond their truth worth. If a Defendant proves on the balance of probabilities that the exaggeration is dishonest, then in principle that is sufficient for a claim to be fundamentally dishonest. Exaggeration alone founded the dishonesty finding in Gosling v Screwfix (unreported, 29/4/14, HHJ Moloney QC, Cambridge County Court) and exaggeration alone founded the successful committal application in Aviva v Kovacic [2017] EWHC 2772.

What if the exaggeration is slight, but dishonest?

That does not matter. Any exaggeration is capable of having serious consequences. To understand why, it is necessary to distinguish between CPR 44.16 and s.57 CJCA 2015. In the former, the dishonesty has to attach to the claim. That means that, in practice, dishonesty probably needs to taint the whole claim rather than a small part of it. But in the latter, the dishonesty only has to attach to the Claimant. Section 57 is thus much narrower in general application (it must specifically be the Claimant who is dishonest) but wider in consequence: an honest claim for general damages accompanied by a dishonest claim for miscellaneous damages could, in theory, cause the whole claim to fail. Of course, section 57 includes an escape clause which protects a Claimant from the operation of s.57 if to dismiss the claim would cause a Claimant to suffer substantial injustice. But the key point is that since s.57 has been carefully drafted not to correspond directly with CPR 44.16, it must be right that s.57 is designed to catch a different type of dishonesty, including partial exaggeration which attaches only to one head of loss.

Lessons for Defendants

  • Investigate every head of loss even if liability has been admitted. If a Claimant claims for gardening costs, for instance, check google maps to see the size of their garden to evaluate the proportionality of their gardening costs. If a Claimant says that they could no longer use the gym, request disclosure of their gym attendance records to corroborate this.
  • Take care claims seriously even if they are modest. Is the Claimant on pre-existing benefits as a carer themselves? Did they continue to provide care during their injury period? And, if so, does that fit with their own claim that they themselves required care? Always require statements from the alleged care-givers.
  • Do social media searches. If a Claimant says that they had lost all appetite for life by virtue of a psychological injury, for instance, does a social media account suggest differently?
  • Look out for the accuracy of the Claimant’s history-giving to the medicolegal expert, particularly if the expert does not have access to the medical records at the time of the report. If the Claimant denies previous medical problems in the site injured but medical records suggest otherwise, is it plausible that the Claimant did not remember those previous problems or was the Claimant seeking to exaggerate the injury to the expert?
  • In higher value claims, consider surveillance evidence. Remember, of course, that you may be able to obtain surveillance evidence without instructing a private investigator: in one case, a Claimant was seen on CCTV shopping without the aid of crutches, carrying bags and walking well on the morning of the medical examination. But when she arrived for her medicolegal examination an hour later, she used her crutches and moved slowly with a pronounced limp. The Judge had no hesitation that she had exaggerated and made a finding of fundamental dishonesty.
  • Make it standard practice to put the Claimant on notice in your defence that if the Claimant is found to have exaggerated any part of the claim, you will seek the dismissal of the whole claim.

Alice Dobbie is a member of the Personal Injury: Defence team at Exchange Chambers. She acts exclusively for Defendants. She is a specialist in civil fraud, negligence and costs.

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