London Borough of Havering v Bowyer, Jones and Bowyer (2012)
In July 2012, the Divisional Court sentenced three fraudsters to prison for contempt of court. Marc Bowyer, the Claimant in the original action, was sentenced to two months; his friend James Jones, who supported the fraud, was imprisoned for one month and Marc Bowyer's father, Richard, who the court held was the driving force behind the claim was sentenced to four months imprisonment. John Palmer, Director in DWF's Local Authority team, acted for Havering Council in their successful contempt application. In this article, John considers how evidence in suspicious claims should be gathered and disclosed.
First signs: inconsistent medical evidence
In many cases the first indication that all is not what it seems with a claimant's case is an inconsistent medical record being referred to in a medical report. What should the defendant now do? Arguably, any suspicious or potentially fraudulent claim should not be considered for settlement until such time as enquiries have been made for the defendant to satisfy itself that sufficient evidence is available to justify it.
If a medical record is inconsistent, the first thing the defendant ought to do is to request a complete copy of the claimant's medical records to establish what they reveal. Medical experts are not looking as closely as you and your representatives may do for any other potentially useful evidence. If the case is to be defended it will be necessary to obtain statements from the makers of any inconsistent medical records whether they be the claimant's GP, a triage nurse, doctor or possibly physiotherapist.
Sometimes, surprisingly, a hospital may be unable to identify precisely who made a particular record which can cause difficulties in proving them.
If the claimant was transferred to hospital following the accident by ambulance, copies of these records should be obtained – they can prove extremely useful as paramedics are usually the first people to attend the claimant after the accident. If this evidence proves helpful, again, statements will be required from the makers.
It may also be worthwhile obtaining a copy of the recording of the actual 999 call. In the Bowyer case this proved most useful.
When the complete medical records are obtained, consider whether there are any other useful entries. If so, then further witness statements need to be obtained to prove them.
Are there any other non-medical inconsistencies in the case? For example, where did the paramedics attend the claimant following the accident? Is this consistent with the claim made? If not, is any other evidence required? How far from where the alleged accident site was the claimant attended? The burden of proof is on the defendant on all of these issues.
Non – medical enquiries
What about non-medical enquiries? Most insurers now carry out CACHE searches to reveal a claims history. Has the claimant/any of his witnesses been involved in any other accidents or claims? (The claimant's medical records can also be revealing in this regard.) Have deep CACHE reports been obtained in respect of any other claims? If any useful information can be obtained then direct contact needs to be made with the relevant insurers to establish whether they have any other useful information or had any reservations regarding the claims they dealt with.
Other useful tools at this point are Facebook, Twitter and the like. More detailed intelligence reports prepared by specialists can be much more enlightening and can greatly assist in connecting the dots and establishing relationships between witnesses. Enquiries need to be creative – each case is different.
It is also worthwhile considering surveillance evidence. In exaggeration type cases surveillance of the claimant can prove extremely helpful but surveillance experts can also assist in proving relationships between witnesses either to the accident circumstances or possibly in respect of quantum/loss of earnings claims – sometimes documents produced in support of loss of earnings claims are not what they seem.
When best to disclose?
When should the evidence accumulated be disclosed? When fraud is suspected, the cards on the table approach needs to be treated with care. If evidence is produced too soon its impact may be lost. Furthermore, the claimant may then have the opportunity to obtain further evidence and/or to attempt to explain any apparent difficulties in his case. Mutual exchange of evidence is the key. Sometimes sufficient evidence is available at the outset to enable the defendant to formally plead fraud within its Defence. However, more usually evidence develops over time; following exchange of evidence the case should be fully reviewed, possibly in conference with counsel, and the decision made as to whether there is sufficient evidence available to plead fraud against the claimant.
Robust counter-fraud strategies
Not all fraud cases are of high value. Many are more modest – claimants may hope that such claims will slip under the radar without too much forensic enquiry. With thorough investigation and timely presentation of evidence it is possible to defeat suspicious and potentially fraudulent claims. Equally, tools are available, in appropriate cases, to punish fraudsters either by referral to IFED or by way of contempt of court proceedings.
Each case will very much turn on its own facts but in the current economic climate there appears to be an appetite to make fraudulent claims. Defendants must remain robust in their counter-fraud strategies to identify and prosecute such claims as they arise. A strong message must be sent to fraudsters and those acting for them that fraudulent or exaggerated claims will not be tolerated.
Sue Howes and Nicola Hyam have recently presented a lecture entitled "Pursuing the Fraudster" at the ALARM North East and Yorkshire development forum. Fraud remains in the top 10 risks both nationally and internationally of large organisations. Sue and Nicola looked at the sanctions available in fraudulent claims, and used case studies and recent successful actions, including "contempt of court" proceedings that can bring fraudsters to task. They gave advice on how to deal with costs in fraud cases and the latest update following Summers v Fairclough Homes Ltd (2012).
To see DWF's Legal Updates on the Supreme Court judgment in Summers click here for part 1 which contains a summary of the judgment and click here for part 2 which discusses the practical implications.
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.