UK: Fundamental Dishonesty: Tinnitus Claim Falls On Deaf Ears

Last Updated: 28 February 2018
Article by Damian Rourke

Heath v Aviva

We are pleased to report another success following implementation of our market leading strategy for dealing with fraudulently exaggerated claims. Clyde and Co's Project Martello is specifically designed to seek dismissal of claims for fundamental dishonesty via the process set out within Section 57 of the Criminal Justice and Courts Act 2015.

This further positive result adds to our previous achievements within Project Martello, which have included the landmark dismissal of a claim pursuant to Section 57 before the final hearing and without oral evidence from the Claimant. The Claimant was ordered to pay the balance of our costs once the 'genuine' element of his claim has been deducted.

Further success was also achieved in another claim where the Claimant agreed to pay us £5,000.00 to end his claim prior to a hearing at which we were seeking to have the claim dismissed for fundamental dishonesty. Again, this payment represented the balance of our costs, after a sum for the 'genuine' element of his claim had been agreed.


The Claimant was involved in an accident when a metal tile from the roof of a lift fell on her head.

The lift roof had fallen and in the absence of witnesses / contemporaneous evidence, it could not be disputed that a genuine injury had been sustained by the Claimant.

She alleged significant levels of disability to the shoulder and ongoing tinnitus. The claim was pleaded in the sum of £93,000, with capacity for this sum to rise significantly.

The medical evidence made some fairly unusual claims:

  1. The incident had caused severe tinnitus
  2. The Claimant's shoulder was severely restricted and could only be flexed or abducted by 40 degrees; and
  3. Her levels of pain and discomfort were "9/10" on a scale of 1 – 10, with 10 representing "the worst pain imaginable".

Whilst fairly forceful claims about levels of discomfort are routinely seen in medical reports, we took the view that it is hard to imagine that a person with that level of pain and restriction of movement would be able to function very much at all.

We uncovered evidence from social media showing the Claimant had in fact joined a gym and began a vigorous exercise programme in a bid to lose weight for an upcoming holiday. Her activities included activities she claimed she was unable to do, such as swimming.

Against that background, it was apparent that (contrary to her assertions) the Claimant was entirely mobile and in very little, if any, discomfort relatively soon after the incident.


Following the issue of proceedings, the following tactics were commenced:

  • A standard put to proof Defence was filed and initial further investigations were undertaken;
  • Once concluded, an electronic Schedule specifically designed by our fraud team was disclosed to highlight the inconsistencies in the Claimant's evidence.
  • Extensive Part 35 and Part 18 questions were also drafted and once exchange of witness evidence had taken place, we disclosed our evidence;
  • The Schedule of Evidence was amended and upon disclosure of our findings we prepared our application to have the claim dismissed, advising the Claimant to withdraw her claim.
  • The claimant then agreed to discontinue her claim.

What can we learn?

  • Once again, it is clear that the mere threat of applying for a Section 57 finding can yield success for insurers where a genuine claim is exaggerated;
  • With the correct process for identifying and progressing cases, Section 57 can be used as a sword rather than a shield which results in significant savings of both time and costs to insurers;
  • In this instance, the Claimant had likely suffered a genuine injury. There were no witnesses to dispute any allegations she may have made about the severity of the incident. Her allegations were supported by medical evidence. However, the alleged symptoms and injuries were so outlandish as to warrant further enquiries in respect of the Claimant's social presence and whether or not there was any inconsistency in her evidence;
  • The evidence was deployed so early in the case that the damages that the claimant would have been awarded for her genuine injuries outweighed our costs at that stage and those costs to be incurred in issuing and pursuing the application itself;
  • If the Section 57 process was not available, this matter would have likely:
    • Resulted in a commercial settlement between the parties prior to a final hearing or;
    • Procession to an unnecessary and costly Trial, with the Court making an appropriate reduction in damages awarded to reflect the actual claim.
  • In either event, the Claimant's conduct would have most likely her receiving damages and recovered (at least some proportion) of her legal costs.

Charles Clayton of Team Martello commented:

Following previous successes we were able to widen the scope of Project Martello with this case, which presents us with further opportunities to target a wider range of claims going forward. The evidence we had gathered was presented in such a manner that the Claimant discontinued her claim; a result we may not have achieved otherwise.

Fundamental Dishonesty: Tinnitus claim falls on deaf ears

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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