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the missing link - fraud in motor insurance claims

18 July 2013

The recent Court of Appeal decision in Basharat Hussain v Adil Hussain and Aviva UK Insurance Limited overturning a finding of fraud against the Claimant, highlights the difficulties faced by insurers and their representatives when trying to prove an allegation of fraud.

Background

The First Defendant, Aviva’s insured, was involved in an accident the claimant, Basharat Hussain (despite sharing the same surname the Claimant and the First Defendant were not related). The claimant made a modest claim for personal injury and vehicle related losses.

Aviva believed the matter to staged, in that the Claimant and First Defendant were complicit in contriving the accident.

It is clear why Aviva had such serious fraud concerns when they were faced with the following indicators:

  • Multiple occupancy of both vehicles
  • The First Defendant had taken out a 7 day HPI policy with the Second Defendant
  • Over 30 accidents were scheduled in the Defence, all of which had been repudiated by Aviva
  • Engineering evidence concluded that the impact had been minor
  • There were inconsistencies in the Claimant’s witness evidence
  • The Claimant had failed to mention the accident when visiting his GP.
  • The credit card used to incept the policy was used in a further 5 accidents over a 7 day period.

The Trial Judge drew compelling inferences that the Claimant and First Defendant were participating in “dishonest mischief”. The Claimant appealed on two grounds:

  1. The follow the money rule applied in the Court of First Instance – Judge Spencer stated that it simply did not make economic sense for the First Defendant to be staging accidents with people he did not know.
  2. the Claimant’s credibility had not been sufficiently discredited in cross examination despite the  failure to mention the accident when visiting his GP.

The Court of Appeal handed down a Judgement on 23 October 2012, allowing the appeal of Mr Hussain overturning the original conclusion of the Trial Judge. The Court of Appeal’s decision centred on the lack of evidence to linking the Claimant to the First Defendant, and how the Trial Judge had focussed his findings on how it was implausible that the Claimant could not have been complicit.

Implications

Whilst it is disappointing to see a ruling of fraud overturned this case has provided clear guidance as to what the Courts expect to see in evidence when making an allegation of fraud in such circumstances.

The vital piece of evidence not uncovered in this case was that linking the Claimant and First Defendant. Whilst there was compelling evidence that the First Defendant was partaking in fraudulent activities, the evidence against the Claimant centred on inferences drawn by the Judge and the performance of the Claimant under cross examination.

This decision highlights the importance of intelligence and the key role it can play when calculating the risk in pleading fraud and defending a case to trial. It emphasises to Insurers and their Solicitors that all possible intelligence needs to be gathered in order to assess the chances of success at the earliest opportunity.

Whilst it is clear that every case is different, with its own unique set of facts, increased emphasis should be placed on linking evidence, whether that is the presence or absence of it, when assessing the potential strength of a case. It is therefore crucial that Insurers and Solicitors continue to work together and gather intelligence to support such allegations of fraud.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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