It has been the practise in some cases for about 25 years that insurers secretly video-filmed claimants in continuing injury cases to verify that there was no exaggeration of injury and in my time as an injury claim solicitor here in Stoke on Trent, writes Stephen Brookes, I have had sent to me several mundane and tedious video-films of my clients out shopping or driving somewhere.
There have however been notable occasions ( not in my practice, I stress) where a claimant informs the court that they cannot run and are then video-filmed running 5 miles on a Sunday morning jog, or running to catch the bus. Is this fundamental dishonesty or mere exaggeration?
The distinction is important.
A claimant solicitor is required to put his client’s case at its best but this does not permit exaggeration. In an attempt to limit the cost of insurance, under-writing no win no fee cases when such insurance cost was no longer recoverable from the losing side, the Government brought in one-way costs shifting. Lose an injury claim and, generally, with three exceptions, a claimant will not have to pay the opponent’s legal fees.
But one exception is dishonesty and in April 2015 the court was given specific power to strike out an injury claim for fundamental dishonesty but no corresponding power was given to the court if a Defendant was dishonest.
If a claim is struck out for fundamental dishonesty the claimant becomes liable for the costs and has no insurance to fall back on.
But what if a trial occurs and the court prefers the evidence of the Defendant which is more polished and the contradictions ironed out? What if the poor injury claimant gets confused and baffled by a cunning and skilful defence barrister and contradicts himself such that the court prefers the evidence of the opponent? In such cases there is anecdotal evidence that the insurance lobby are arguing that such cases are fundamental dishonesty.
These are worrying times !!