Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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Defendants often feel that claims they are presented with are excessive and, occasionally, potentially fraudulent. Recent case law indicates that Judges are not always sympathetic towards allegations by Defendants of fraud or exaggeration (see below). Such allegations need to be pleaded in a Defence supported by a statement of truth so this is not a step which will be taken lightly. It is therefore crucial that attempts are made to resolve any quantum disputes before trial and to ensure that ample evidence is obtained. This article describes the steps that can be utilised to dispute heads of loss that do not add up.
Readily available information and a simple to execute exercise. A Claimant solicitor should do this themselves but it seems sometimes this is not the case. Alternatively, inconvenient evidence may be ignored.
Sometimes, a bit of detective work when reviewing the medical records can identify pre-existing medical conditions which explain disabilities that are now alleged to be as a result of the injury suffered. Examples include an inability to walk, work, wash or participate in physical activities. There will usually be references in the medical records which inform the reality of the Claimant’s medical condition before they suffered the misfortune of being injured. However it is surprising how many Claimants’ experts fail to take this evidence into account when reaching their conclusions and it is useful to refer to entries in the medical records when entering into settlement negotiations.
Disclosure remains one of the key stages of litigation. We sometimes receive documents that enable us to strike out, or at least dramatically reduce, some heads of losses that are inappropriate, exaggerated or on occasion, farcical.
A useful source of information is the DWP records. A Claimant will often state their medical restrictions in great detail in their applications for benefits before the index event. On occasions these comments can be used to highlight the reality of the situation if a Claimant alleges that his or her lifestyle restrictions are a new phenomenon that have occurred as a direct result of the alleged negligence.
Diaries can be very illuminating, being a contemporaneous account of what was happening at the time. If they are directly compared to the medical records, areas of conflict can sometimes be identified and these can result in a Claimant having to explain discrepancies and potentially modifying previous claims made. On one case we dealt with, a Claimant had tape recorded her medical appointments without the doctor being aware. It was time consuming to go through the transcripts with a fine tooth comb but the inconsistencies shown proved to be extremely powerful evidence for the Defendant.
One way to try to establish the reality of a situation is to send an expert to the Claimant’s house for an examination with a list of concerns that have been identified. Some misrepresentations can be readily apparent; in a recent case we dealt with, an expert went to visit a Claimant at her house who claimed to be immobile to find her perched precariously, one legged, on a stool hanging out her washing in the back garden. In another case, a Claimant was claiming increased heating costs for the rest of her life in the Schedule of Loss. When our expert visited she noticed that a talking clock announced the temperature every hour. When questioned about this, it was discovered that the Claimant had four fans around the house to keep the temperature at a constant 23 degrees as the flat was too hot. No increased heating costs were awarded.
An expert can sometimes highlight elements of a case that the Claimant did not even realise were inaccurate. This problem can arise where a schedule is drafted by a solicitor making certain assumptions and the Claimant does not review this in sufficient detail or may not understand what is being claimed. In one case we dealt with, a Claimant admitted when directly questioned that she did not really swim, mow the lawn or use public transport before the index event despite the claims by the solicitor that she could. She conceded that she had been wheelchair bound and this had in fact hindered her ability to carry out these activities for at least 5 years before the index event. In another case, it was established that the ongoing difficulties that the Claimant was suffering from had nothing to do with her decision to start working part time which was actually a lifestyle choice as she had a young family.
On occasions it becomes necessary to serve a Notice to Admit facts in order to strengthen the evidence that has already been found in the DWP and/or GP records. In one case we dealt with, the DWP notes clearly confirmed the Claimant had been receiving the highest level of care benefits from the DWP prior to the index event for disabilities it was then being claimed arose from the later injury that formed the basis of her subsequent claim. The Claimant had either been overstating her previous claim to the DWP, prior to the index event, or was now claiming for care that was already being provided. When it is put in such stark terms there is little that the Claimant can do but settle at a discount. The Notice to Admit achieved up to a 75% reduction on the value of the claim.
If suspicions are raised about elements of a claim, a request for disclosure of some more unusual items can provide compelling evidence. In another case we dealt with, it was claimed the Claimant was virtually housebound as a result of disabling back pain. After specifically requesting a copy of the Claimant’s passport, this revealed stamps to various exotic locations such as the far East and the computerised GP notes revealed that the Claimant had requested vaccinations to visit remote jungle areas. This is not an isolated incident and passports have been used to shed more light on the true situation of a Claimant on more than one occasion.
Finally Google earth, facebook and general internet searches can lead to a number of interesting discoveries. An accommodation claim for an electronic garage door was quickly disputed when a Google earth search found that on a street view of the house there was no garage.
The case law suggests that even if Defendants do produce compelling evidence of exaggeration or fraud, an award of damages will still be made if negligence is conceded/proved (Summers v Fairclough Homes Ltd (2010)). In the case of Anita Shah v (1) Wasim Ul-Haq (2) Samara Khatoon (3) Zahida Parveen (2009) it was held that the invariable rule was that, where a claim had been dishonestly exaggerated, the Judge would award damages limited to the level appropriate to his findings. It is well established that a Claimant would not be deprived of damages to which he was genuinely entitled because he had fraudulently attempted to obtain more than this. The Court attempts to reconcile this apparent disparity by making an award for costs in a Defendant’s favour but this often will not fully reimburse the expenses of proceeding to trial. It is therefore important to secure all possible evidence and arguments on quantum at an earlier stage, to facilitate settlement of a claim at an appropriate level.
The above steps are by no means exhaustive and with developing technology it is becoming easier to dispute heads of loss that are not as a direct consequence of the alleged negligence. In the most extreme cases surveillance can be used but this is another step not to be taken lightly and Defendants will weigh any Human Rights Act implications carefully. It is exasperating that these claims are made in the first place but it is of some reassurance to Defendants that there are tools to assist and that these are utilised to their maximum benefit to ensure that exaggerated claims are settled at their true value.